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Background of the applicants’ situation Under the Land Ownership Act, restitution claimants were entitled to restitutio in integrum of land which had been confiscated from them before 1990. If it was not possible, for various reasons indicated in the Act, to restore a particular plot of land, they were entitled to receive compensatory land of equivalent value (“restitution claim”). The Land Fund ( pozemkový fond ), a public body under the Ministry of Agriculture (hereinafter “the Fund”), deals with these restitution claims. Some original restitution claimants transferred their claims to other persons, a practice which was allowed by law. The restitution claims had a nominal value, which was based on the price of the confiscated land in 1991. Act no. 253/2003 amending the Land Ownership Act (“the Amendment Act”) was passed on 6 August 2003 (see paragraph 41 below). It provided that if the Fund had not settled a claim for a substitute plot of land by 31 December 2005 – or within two years if the claim had been purchased after entry into force of the Amendment Act – the claim would be extinguished and the restitution claimant would retain only the right to financial compensation in the amount of the nominal value of the claim. By the end of 2005 many restitution claims were still outstanding. On 7 June 2005 the board of directors of the Fund adopted a confidential internal directive in accordance with which the Fund would draw up contracts for the transfer of plots of land with persons who, like some of the applicants, had instituted proceedings against it. This practice was terminated on 1 July 2005. When the media discovered this month-long practice in autumn 2005, they portrayed it as scheming with restitution claims within the Fund. According to them, those who had profited from it had been mostly people who had known about the directive and instituted proceedings after 7 June 2005, including some friends of managers of the Fund. As a result of the disclosure of this practice, four managers of the Fund were dismissed and on 16 November 2005 the Minister of Agriculture resigned. Subsequently, the Fund started to institute proceedings in order to have those transfer contracts rendered null and void. B. Applications lodged by Jaroslav Čadek Application no. 31933/08 Between 7 March and 29 April 2005 the applicant purchased a number of restitution claims for substitute plots of land. On 30 June 2005 he instituted proceedings against the Fund, claiming the transfer of particular plots of land in settlement of his restitution claims. On 6 October 2006 the Prague 8 District Court ( obvodní soud ) rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 28 March 2007 the Prague Municipal Court ( městský soud ) upheld the judgment but on a different ground. It found that the applicant was not entitled to settlement of his restitution claims through legal proceedings, as the Fund’s priority was to settle the original restitution claims. On 10 August 2007 the Supreme Court ( Nejvyšší soud ) dismissed an appeal on points of law lodged by the applicant, thereby endorsing the opinion of the District Court. On 6 March 2008 the Constitutional Court ( Ústavní soud ) dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below). Application no. 60084/08 Between 7 March and 29 April 2005 the applicant purchased several restitution claims for substitute plots of land. On 30 May 2005 he instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of his restitution claims. On 22 September 2006 the Prague 10 District Court rejected his claims, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 12 April 2007 the Municipal Court upheld that judgment. On 28 August 2007 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 10 July 2008 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below). Application no. 6185/09 On 11 May 2005 the applicant purchased several restitution claims for substitute plots of land. On 7 June 2005 he instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of his restitution claims. On 14 August 2006 the Prague 4 District Court rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 17 January 2007 the Municipal Court upheld that judgment. On 30 June 2008 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 18 September 2008 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below). Application no. 52792/09 Between 11 and 19 May 2005 the applicant purchased a number of restitution claims for substitute plots of land. On 7 June 2005 he instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of his restitution claims. In a judgment of 27 November 2006 the Prague 9 District Court rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 11 July 2007 the Municipal Court upheld that judgment. On 30 June 2008 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 25 June 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS6/05 (see paragraph 42 below). Application no. 53518/09 On 11 May 2005 the applicant purchased several restitution claims for substitute plots of land. On 7 June 2005 he instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of his restitution claims. In a judgment of 2 October 2007 the Prague 5 District Court rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 10 February 2008 the Prague Municipal Court upheld that judgment. On 5 March 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 8 July 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below). The restitution claims purchased by the applicant in the five applications cost a total of 12,184,153 Czech korunas (CZK) (487,366 euros (EUR)). The claims were settled by financial compensation of CZK 6,651,909 (EUR 266,076), which constituted their nominal value. Application no. 46696/09 lodged by Hana Puchtová The applicant has been a farmer since 2003. She purchased several restitution claims for substitute plots of land between 2004 and 2005, and one on 17 June 2003. The total nominal value was CZK 2,030,605 (EUR 81,224); but the applicant paid CZK 2,984,824 (EUR 119,393). On 14 July 2005 she instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of her restitution claims. In a judgment of 31 July 2006 the Klatovy District Court rejected her claim, holding that her restitution claims had expired on 31 December 2005 under the Amendment Act. On 8 November 2006 the Plzeň Regional Court ( krajský soud ) upheld that judgment. On 23 August 2007 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 12 March 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS6/05 (see paragraph 42 below). The applicant received financial compensation of CZK 1,307,740 (EUR 52,310) for her restitution claims and she had the right to receive the rest of the nominal value of her restitution claims. Application no. 10185/10 lodged by Ústav pro strukturální politiku v zemědělství, a.s. The applicant is a corporation established under Czech law. On 19 April and 3 June 2005 respectively, the applicant company concluded two contracts by which it purchased for an unspecified amount restitution claims for substitute plots of land. On an unspecified date the applicant company instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of its restitution claims. On the basis of a contract concluded on 1 July 2005, the Fund transferred to the applicant company the ownership of a plot of land valued at CZK 277,903 (EUR 11,579). Consequently, the court proceedings were terminated as the matter had been resolved. On an unspecified date the Fund instituted proceedings against the applicant company for the determination of property rights to the transferred plot of land, claiming that the contract was null and void. On 9 June 2006 the Cheb District Court decided that the Fund was the owner of the plot of land. It held that the contract was null and void because the Fund had not offered the sale of the land publicly before transferring it to the applicant company and had thereby unlawfully excluded other eligible persons from acquiring it. On 23 May 2007 the Plzeň Regional Court upheld the judgment, endorsing the District Court’s ruling. On 7 May 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicant company. On 6 August 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant company as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below). The applicant company has not requested financial compensation to settle its restitution claims. E. Application no. 42151/10 lodged by Ivo Pastorek and Viktor Pavlíček Between 2 February and 31 March 2005 the applicants purchased several restitution claims for substitute plots of land in order to acquire land in Prague to set up a health centre. The total nominal value of the restitution claims was CZK 5,084,404 (EUR 211,850); they paid CZK 14,092,500 (EUR 563,700). On 25 May 2005 they instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of their restitution claims. In a judgment of 23 May 2007 the Prague 4 District Court rejected their restitution claims, holding that they had expired on 31 December 2005 under the Amendment Act. On 17 April 2008 the Prague Municipal Court upheld this judgment. On 18 November 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicants. On 18 March 2010 the Constitutional Court dismissed a constitutional appeal lodged by them as manifestly ill-founded. The first applicant received financial compensation of CZK 2,351,442 (EUR 94,050) and did not ask for financial compensation for his outstanding restitution claims. The second applicant did not ask for financial compensation. F. Application no. 3167/11 lodged by Landštejn, s. r. o. The applicant is an agricultural company. On 27 May 2005, it concluded a contract by which it purchased, for an unspecified amount, restitution claims for substitute plots of land, the nominal value of which was CZK 1,247,292 (EUR 51,971). On the basis of a contract concluded on 1 July 2005 the Fund transferred to the applicant company the ownership of plots of land valued at CZK 733,906 (EUR 29,356) in partial settlement of the claim. The application refers only to that part of the claim. On 17 December 2005 the Fund instituted proceedings against the applicant company for determination of property rights to the transferred plot of land, claiming that the contract was null and void. On 30 October 2007 the Jindřichův Hradec District Court decided that the Fund was the owner of the plots of land. It held that the contract was null and void because the Fund had not offered the sale of the land publicly and had thereby unlawfully excluded other eligible persons from acquiring it. On 27 February 2008 the České Budějovice Regional Court upheld the judgment, endorsing the District Court’s ruling. On 17 March 2010 the Supreme Court dismissed an appeal on points of law lodged by the applicant company. On 10 June 2010 the Constitutional Court dismissed a constitutional appeal lodged by them as manifestly ill-founded. The applicant company received CZK 733,906 (EUR 29,356) as financial compensation for its restitution claim. G. Application no. 20939/11 lodged by Jarmila Vorlíčková On 17 September 1997 the applicant purchased a restitution claim for substitute plots of land for CZK 56,248 (EUR 2,344), corresponding to its nominal value. She intended to acquire a plot of land on which she could breed horses for private purposes. On 21 January 1998 the Fund accepted the applicant’s request for the transfer of a particular plot of land, but informed her that it could not carry out the transfer until it had all the necessary materials regarding the relevant zoning plan. On 2 February 1998 the applicant wrote to the Fund asking it to settle her claim without further delay. On 8 November 2005 the applicant instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of her restitution claim. On 12 December 2005 the Fund transferred the ownership of the plot of land to the City of Tanvald. Consequently, the applicant brought proceedings against the Fund, claiming that the transfer contract should be declared null and void. On 27 April 2007 the Jablonec nad Nisou District Court upheld her claim and declared the transfer contract null and void. In a judgment of 26 June 2008 the Ústí nad Labem Regional Court rejected the applicant’s claim, however, holding that her restitution claim for the transfer of land had expired on 31 December 2005 under the Amendment Act and thus she had no interest in having the contract declared null and void. On 12 May 2010 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 14 September 2010 the Constitutional Court dismissed a constitutional appeal lodged by her as manifestly ill-founded.

P1-1, 13, 8

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He is the president of the second applicant, a company with its registered office in Istanbul. In 1984 the second applicant, Em Export Dış Ticaret A.Ş. (hereinafter “the applicant company”), entered into a business contract with a State-owned company, namely the Iron and Steel Company of Turkey ( <COUNTRY> Demir Çelik İşletmeleri ), for transactions in substantial amounts of coal and iron between the two companies over a certain period of time. In 1988 and 1990 respectively, the applicant company brought two sets of proceedings before the Ankara Commercial Court, claiming that the Iron and Steel Company had failed to respect its contractual obligations. The court joined the two sets of proceedings and accepted the applicant company’s case. It ruled that the Iron and Steel Company was to give the applicant company a certain amount of iron and pay it compensation. The Iron and Steel Company appealed against the judgment. In the meantime, the applicants initiated enforcement proceedings while the case was still pending before the Court of Cassation. As a result of the enforcement proceedings, in 2000 the Iron and Steel Company paid a total of approximately 1,600,000,000,000 Turkish liras (TRL) [1] to the applicant company. By a letter dated 23 June 2000, the then under-secretary to the Treasury wrote to the Ministry of Finance requesting a tax audit of the applicant company. In their letter, the authorities indicated that the enforcement proceedings had caused such substantial damage to the Iron and Steel Company that some of its factories had stopped production. They claimed that the applicant company’s initiation of enforcement proceedings without having waited for the final decision had aimed at obstructing the Iron and Steel Company’s business and benefiting from its financial difficulties. On 27 July 2000 the Directorate General of Tax Inspectors ( Vergi Denetmenleri Bürosu Başkanlığı – hereinafter “the Tax Inspectorate”) decided that an audit would be carried out in respect of the applicant company. On 23 August 2000, having established that the applicant company could not be found at its registered addresses, two tax inspectors went to another address in Mecidiyeköy, Istanbul, which appeared to be its business premises, in order to examine its account books. The records subsequently prepared by the inspectors stated that the first applicant, who had introduced himself with a false name, had requested a period of fifteen days to submit the relevant documents and had refused to sign the records. The inspectors also noted that following the first applicant’s refusal to sign the records, they had summoned a police officer and prepared an official letter in his presence. That official letter invited the applicant company to submit all documents related to its income and expenditure within fifteen days. The applicant company was informed that it should make a specific request in order to have the audit conducted at its premises, provided that the premises were available for such a procedure. The letter also stated that the representatives of the applicant company would be charged with tax evasion if they failed to declare the company’s income and present its account books. By a letter dated 5 September 2000, the applicant company informed the inspectors that the documents were ready for examination at its office. It said that a separate room at its premises would be allocated to the inspectors during the audit and asked to be given two days’ notice in order to prepare the room and the staff who would present the documents. On 13 September 2000 one of the inspectors, S.K., sent an official letter to the applicant company, stating that it was not possible to carry out the audit at its business premises as the address was not registered. She invited the first applicant to provide her with the documents requested previously within fifteen days. On 29 September 2000 the first applicant responded, arguing that S.K. had not complied with the relevant legislation and that she had acted in bad faith. He pointed out that the documents were at the disposal of the authorities for examination at the applicant company’s premises on condition that they gave it five days’ notice. 15 . On 10 October 2000 the tax inspectors went to the address in Mecidiyeköy together with two police officers. According to the records, the applicant company’s staff refused to present the required documents and requested five days’ notice to do so. Subsequent records stated that following a discussion during the drafting of the first record, the staff had decided to present the books for 1998 but not those relating to the tax year 2000. The inspectors stated that seven books and a total of 396 receipts had been submitted. They pointed out that all of the documents had been signed, stamped and given back to the company’s representatives. Lastly, they noted that although the office was physically available to them to carry out an audit, it would not be possible to do so in view of the tension caused by the company’s staff. The records were signed by those present, namely two inspectors, two police officers and the applicant company’s lawyer. On 26 October 2000 S.K. applied to the Şişli public prosecutor’s office in the name of the Tax Inspectorate, requesting a warrant to search three addresses related to the applicant company. She submitted that an examination of its tax files had revealed that the applicant company appeared to be hiding the money it had received from the Iron and Steel Company in order to evade the payment of taxes. Summarising the content of the records drawn up until that point and referring to all the correspondence between her and the applicant company, she maintained that the company’s representatives had acted in a hostile manner and tried to obstruct the work of the inspectors by hiding information such as their names and the official address of the company, as well as by unjustly accusing her. She pointed out that under section 138 of the Tax Procedure Act, the authorities were not required to inform taxpayers in advance of an audit and that in view of that provision, the applicant company’s request to have several days’ notice, despite having already been informed of the audit, was unacceptable. She concluded that a search was required under those circumstances. On the same day the Şişli Magistrates’ Court issued a warrant authorising a search of the applicant company’s premises. The relevant parts of the search warrant read as follows: “Pursuant to the Şişli public prosecutor’s request dated 26 October 2000, it is decided that: A search will be carried out at the business premises of Em Export Dış Ticaret A.Ş., located at ... Mecidiyeköy, Istanbul, taking into account that the account books and other documents to be examined are [being] presented to the authorities at that address. The search will be conducted during the daytime and only once. The request with regard to the other two addresses is rejected for the reason indicated above.” Later the same day, two tax inspectors, including S.K., searched the applicant company’s premises and seized a number of documents. According to the records, the search was carried out in the presence of the first applicant, staff members of the applicant company and two police officers. It was noted that the documents that were considered relevant for the audit had been placed in a bag and sealed, and that a detailed inventory would be made at a later stage. The records were signed by the two inspectors, the two police officers and a staff member of the applicant company. The first applicant refused to sign them. On 1 November 2000 the applicant company was informed that the seized documents would be “unsealed” ( mührün fekki ) on 28 November 2000 and was invited to be present during the procedure. 20 . On 27 November 2000 the first applicant sent a letter, stating that he had not understood the meaning of “unsealing”. He reiterated his argument that the audit should be carried out at the applicant company’s premises. On 28 November 2000 S.K. and two other inspectors opened the two bags containing the documents that had been seized during the search and drew up an inventory. The inspectors recorded the fact that the seals had been broken in the absence of the taxpayer as it had not attended the procedure despite having been invited to do so. The inventory listed the names of all the books and tax declarations seized. A note was made that the receipts concerning various years had been classified and sealed separately. On 11 December 2000 the head of the Tax Inspectorate informed the first applicant of the address where the seized documents were being kept. He also explained what “unsealing” meant. By two letters dated 4 November and 6 December 2000 the Tax Inspectorate requested that the applicant company submit the account books for the years 1996, 1997 and 2000, as they were not among the seized documents. On 23 December 2000 the applicants submitted certain documents. On 23 January 2001 the Tax Inspectorate requested an extension of the audit period, on account of the substantial number of documents seized during the search and the fact that the applicant company had not submitted the missing documents until 23 December 2000. It also stated that the applicant company had not yet presented some of the documents requested. In line with the request, the Şişli Magistrates’ Court extended the audit period by six months. 26 . The applicants objected to that decision. On 31 May 2001 the Şişli Criminal Court of General Jurisdiction decided to annul the remainder of the extended period, holding that the four months that had passed since the Magistrates’ Court’s decision must have been sufficient to conclude the audit. During the course of the audit, tax inspector S.K. compiled three records, listing in detail the information obtained from the seized documents and putting certain questions to the applicants in respect of those. One of the records was read by the applicants’ lawyer, who objected to its findings by means of a handwritten note. The other two records stated that the applicants had submitted a letter, according to which they refused to sign them. Consequently, the seized documents had been kept by the authorities. In the meantime, S.K. had several exchanges of correspondence with the enforcement authorities, whereby she requested certain information about the amount that had been paid to the applicant company and how much of that amount corresponded to interest. 29 . By a letter dated 1 May 2002 the applicant company was informed that the audit had been completed. On 25 May 2002 S.K. drew up a tax-assessment report, noting several irregularities in the applicant company’s financial records and payment of taxes, in particular with regard to the amount it had obtained as a result of the payment made to it by the Iron and Steel Company. In that connection, among many documents examined, the report also referred to the information provided by the enforcement authorities, which specified the total amount paid to the applicant company by the Iron and Steel Company and the interest rate applied in the calculation of that amount. It pointed out that the applicant company, which had not been active for a long time, appeared to have made a substantial number of transactions with some of its partners, without any documents justifying them. Moreover, it found that the company had profited from its investments in foreign currencies, which had not been declared to the authorities. Concluding that the applicant company had acted fraudulently in its bookkeeping, the report requested that corporate income tax and provisional tax be imposed on it, together with a penalty for potential lost revenue. As regards the procedure that had been followed, the report pointed out that the authorities had been unable to locate the applicant company at its registered addresses. It also stressed the difficulties caused to them by the company’s staff at another address which the company was using temporarily as its business premises. Reiterating the content of the records drawn up during the visits to that latter address, the report noted that after having obtained a search warrant from the Magistrates’ Court, the inspectors had had to seize the relevant documents and take them to the Tax Inspectorate, as the audit could not be carried out there due to the staff’s behaviour and as it was not the applicant company’s registered business address within the meaning of section 139 of the Tax Procedure Act (Law no. 213). On 11 July 2002 the Tax Office issued several tax notices to the applicant company under sections 341 and 344 of the Tax Procedure Act. It ordered it to pay TRL 123,205,000,000 in income tax and TRL 587,688,150,000 [2] as a penalty ( cezalı gelir stopaj vergisi ve fon payı tarhiyatı ) in respect of different periods of year 2001. For the year 2000, the Tax Office ordered the applicant company to pay provisional income tax of TRL 111,059,520,000 and a penalty of TRL 563,071,740,000 [3] ( geçici kurumlar gelir vergisi ve vergi ziyaı cezası ). A. Proceedings concerning the income tax and penalty imposed in respect of the year 2001 Taxation proceedings The applicant company brought two sets of proceedings before the Istanbul Tax Court, requesting the annulment of the income tax and the penalty imposed in respect of different periods of year 2001. It stated that both the tax and the penalty had resulted from the payment made to it by the Iron and Steel Company following the judgment of the Commercial Court to that effect, and that the amount was not yet subject to any tax as proceedings were still pending before the Court of Cassation. It also challenged the findings of the tax-assessment report, arguing that the transactions between partners did not justify the imposition of the tax and the penalty. With regard to the procedure, the applicant company claimed that both the search and the audit had been conducted unlawfully. Despite the allegations of tax inspector S.K., its address was registered and the documents should have been examined at its premises. Although the Tax Procedure Act provided that a search could only be conducted on suspicion of tax evasion, S.K. had obtained a search warrant without there being any such indication. The applicant company further alleged that S.K. had refused to make an inventory of the documents seized during the search, had prevented it from sealing the documents with its own seal and had distorted the facts in the search records as well as in the tax-assessment report she had drafted. Lastly, the audit had been carried out unlawfully after the expiry of the period indicated in the warrant issued by the domestic court. On an unspecified date the Tax Court held a hearing attended by the applicants and S.K. 34 . On 11 June 2003 the Tax Court delivered two judgments regarding the two sets of proceedings brought by the applicant company. The court allowed the applicants’ claims in part, and reduced the tax penalty to one-third of the amount originally imposed. It dismissed the applicant company’s claims as regards the unlawfulness of the search and seizure, finding that the procedure had been in compliance with the relevant legislation. Referring to section 139 of the Tax Procedure Act, the court held that the applicants’ behaviour before the search, as well as their failure to submit the required documents and to respond to the tax inspectors’ letters, had made it clear that the audit could not be conducted at the applicant company’s premises. It also held that the documents in the case file did not substantiate the company’s allegations against the tax inspector. As for the tax and the penalty imposed, the court held that despite certain flaws in the tax inspector’s methods, the findings of the tax-assessment report were reliable. In that connection, it held that the amount paid to the applicant company by the Iron and Steel Company was subject to taxation and that the former had failed to clarify the source of substantial transactions with some of its partners. The applicant company appealed, arguing, inter alia , that the Tax Court had relied on the tax-assessment report, which, according to it, had been drawn up unlawfully. S.K. had distorted the content of certain documents she had seized during the search and had not notified it of the records she had drawn up during the course of the audit, in breach of the relevant legislation. Lastly, the applicant company requested that a criminal investigation be opened against S.K. On 27 April 2004 the Supreme Administrative Court upheld the judgments. The applicant company applied for rectification of the judgment, arguing that although the tax-assessment report pointed to the absence of certain receipts as one of the reasons for the penalty, those receipts and other important documents had unlawfully been taken from its premises during the search and had not been made accessible to the applicants later on. It submitted that despite its requests to that effect, the Tax Court had failed to obtain those documents and to request that criminal proceedings be instituted against the officials who were responsible for their unlawful seizure. The Supreme Administrative Court rejected the rectification requests on 25 November 2004. Final decisions were served on the applicant company on 10 January 2005. Provisional seizure measures imposed on the applicant company and criminal proceedings against tax inspector S.K. On 14 November 2000 and 29 June 2001 respectively, the Governorship of Istanbul imposed two provisional seizure measures on the applicant company in line with S.K.’s reports. Both seizure measures were found to be unlawful and were annulled by the Istanbul Tax Court. Subsequently, on 19 December 2001 the applicant company requested that criminal proceedings be instituted against S.K., claiming that she had abused her powers by presenting false information to the authorities. On 14 October 2002 the Governorship of Istanbul delivered a decision. Finding that S.K. had acted in compliance with the law, it refused to give permission for the opening of an investigation against her. On 20 February 2003 the District Administrative Court dismissed an objection lodged by the applicant company to that decision. B. Proceedings concerning the provisional tax and penalty imposed in respect of the year 2000 The applicant company brought two sets of proceedings before the Istanbul Tax Court, this time requesting the annulment of both the provisional income tax and the penalty imposed in respect of tax year 2000. It argued that the tax assessment report had been drafted in vague terms and had failed to clearly indicate the reasons for its conclusions. In its petition, the applicant company repeated once again its claims as regards the unlawfulness of the search and the audit. On 11 June 2003 the Tax Court accepted the cases and held that both the provisional income tax and the penalty related to it had been imposed unlawfully. The domestic court noted that due to the applicant company’s failure to declare its yearly income in full, its income for year 2000 had been calculated ex proprio motu by the authorities. It found that an income calculated in that manner was not subject to provisional taxation and that no penalty could be imposed on the company as a result. The court did not mention the search and seizure. On 27 April 2004 the Supreme Administrative Court partially quashed the judgments, finding that although the annulment of the provisional taxation was in line with the relevant legislation, as the set-off period had elapsed, under the relevant provisions a penalty could still be imposed for failure on the part of the taxpayer to declare the correct amount. On 10 March 2005 the Tax Court dismissed the applicant company’s claim for annulment of the penalty, holding that it was in line with the legislation as the company had failed to declare a certain part of its income. The court held that it was not necessary to rule on the provisional tax, as that part of the judgment had already been upheld by the Supreme Administrative Court. The applicant company appealed. After raising several arguments concerning the imposition of the tax penalty and its calculation, it pointed out that the search had been conducted unlawfully in that all the documents had been seized by the inspectors without making an inventory. It further argued that the Tax Court had failed to address its arguments and to deliver a reasoned judgment. On 5 October 2005 the Supreme Administrative Court upheld the judgments. The decisions were served on the applicant company on 2 December 2005. In 2004 and 2005 the applicant company made several payments to the Tax Office as regards the years 2000 and 2001.

Türkiye

The applicant company ran an art gallery in Paris. In judgments of 13 September and 8 November 1993, the Paris Commercial Court ordered its judicial reorganisation, followed by its compulsory liquidation. On 21 December 2004, there being no more outstanding debts, the court terminated the liquidation proceedings. A. Proceedings concerning supplementary tax assessment From 27 October 1993 to 12 April 1994 the tax authorities inspected the applicant company’s accounts for the period from 1 January 1991 to 8 November 1993. On 6 May and 5 October 1994 they sent them two supplementary tax assessments – one for 1991 and one for 1992 and 1993 – inter alia for supplementary tax on precious metals, jewellery, works of art, collectors’ items and antiques (hereinafter “the tax on works of art”), in accordance with the provisions of Articles 302 bis A to 302 bis E of the General Tax Code (since 1993, Articles 150 V bis to 150 V sexies of the same code). In addition to the additional tax, the applicant company was charged interest for late payment and a fine was imposed under Article 1788 ter of the General Tax Code (Article 1770 octies since 1993), equal at that time to 100% of the unpaid tax. On 25 January 1995 the company was served with a demand to pay a total of 15,927,514 French francs ((FRF) – 2,428,133 euros (EUR)), of which the fine accounted for half (FRF 7,963,757 or EUR 1,214,066.93). On 24 December 1997 the applicant company, represented by its court-appointed administrator, lodged a complaint with the Director of Revenue seeking relief from all the surcharges and fines demanded. It alleged on the one hand that the tax on works of art could be likened either to a value-added tax, which was contrary to Directives 77/388/EEC and 94/5/EC of the Council establishing special provisions applicable, inter alia , to works of art and collectors’ items, or to a capital-gains tax, with an effect equivalent to an export restriction or an internal taxation, both of which were prohibited by Articles 34 and 95 of the Treaty of Rome. The applicant company also argued that the fines, which could be likened to criminal convictions within the meaning of the European Convention on Human Rights, should have been imposed by a court. On 8 June 1998 the Director of Revenue rejected the complaint, stating that the tax concerned was not comparable to a value-added tax and did not hinder the free movement of goods, in so far as it applied to sales made either in <COUNTRY> or in any other European Community member State. The Director of Revenue also pointed out that the Court, in its Bendenoun <COUNTRY> judgment (24 February 1994, Series A no. 284) had acknowledged that the system of administrative penalties was compatible with Article 6 § 1 of the Convention, provided that their application was subject to court supervision. B. Proceedings concerning exemption from supplementary tax on works of art and related penalties On 31 July 1998 the applicant company brought an action before the Paris Administrative Court seeking exemption from the supplementary tax on works of art demanded of it for the years 1991 to 1993 and from the related penalties, based on the same grounds as its earlier complaint. By a judgment of 4 November 2004, the court rejected the action. Concerning the conformity of the tax penalty with Article 6 § 1 of the Convention, it pointed out that the courts responsible for tax matters had full power of review over the facts concerned and their classification by the authorities, and decided in each case, in the light of the results of that review, either to uphold or apply the tax penalty effectively incurred in the amount provided for by law, without being able to adjust it to the circumstances of the particular case, or, if they considered that the authorities had not established that the infringements of the General Tax Code had been made out, not to fine the taxpayer. The court accordingly deemed that Article 6 § 1 did not necessarily require the tax court to have the power to adjust the amount of the penalty to suit the particular circumstances of the case. On 10 January 2005 the applicant company lodged an appeal with the Paris Administrative Court of Appeal. During those proceedings, order no. 1512 of 7 December 2005 reduced the fine provided for under Article 1788 of the General Tax Code (which became Article 1770 octies in 1993) from 100% to 25% of the unpaid tax. On 13 February 2006 the tax authorities reduced the fine by EUR 910,549.93, and on 6 July 2006 the additional tax on works of art demanded was reduced by EUR 28,735.12 because of a mistake in the calculation. The applicant company used the same arguments before the Court of Appeal as it had before the Administrative Court. By a judgment of 24 November 2006, the Administrative Court of Appeal, having taken note of the reductions and ruled that there was no need for it to take those amounts into account, upheld the judgment on the whole but reduced the price the tax authorities had placed on one work acquired by the applicant company. After careful consideration it rejected the applicant company’s formal and substantive arguments that the tax was at variance with Community law, for example, or that it should not have been applied to the acquisition of certain works. The court also rejected the argument under Article 6 § 1 of the Convention concerning the fine, for similar reasons to those given by the lower court, pointing out that the Administrative Court had full jurisdiction as required by Article 6 § 1, which did not require the court to be able to lower the rate of a fine when the legislation provided for a single rate. The applicant company appealed to the Conseil d’Etat on points of law, alleging, inter alia , that the tax was incompatible with Community law and the fine incompatible with Article 6 § 1 of the Convention, in so far as the court had no power to adjust it to reflect the seriousness of the taxpayer’s conduct according to a statutory scale. By a judgment of 27 June 2008, the Conseil d’Etat rejected the appeal. Regarding the fine, it held as follows: “Considering ... on the one hand that, in order to make the rate of the fine proportionate to the offence, the order of 7 December 2005 fixed it at 25%, and on the other hand that the tax court, having exercised its full power of review over the facts of the appeal and the classification adopted by the authorities, decides, in each case, depending on the results of that review, either to uphold the surcharge imposed by the authorities or to cancel it if it considers that the taxpayer has not infringed the rules applicable to works of art, and that it therefore has full jurisdiction as required under the provisions of paragraph 1 of Article 6 of the Convention ..., which do not imply that even where the legislation provides for a single rate for the fine in question the court must be able to adjust it and apply a rate lower than that provided for by law; accordingly, in not setting aside the fine provided for in Article 1761 of the General Tax Code in the present case, the court did not commit any error of law.” Proceedings concerning the determination of the tax base and the collection of the tax on works of art Proceedings concerning the tax base On 5 April 2005 the applicant company lodged two appeals with the Conseil d’Etat challenging the interpretation by the Minister of the Economy, Finance and Industry (“the Minister”) of the tax law found in the basic administrative documents (in its successive versions of 15 October 1989 and 15 June 1993), whereby the Minister defined the base of the tax on works of art as their selling price, including commission. The applicant company pointed out that Parliament alone had the power to create a tax and determine the key details of its establishment and collection, and submitted that the Minister, in whose name the administrative documents concerned had been drafted, had overstepped his powers. During the proceedings the tax was completely rewritten and the numbering changed, by Article 33 of the Budget Amendment Act 2005, adopted on 30 December 2005 and effective from 1 January 2006. On that occasion the provisions concerning the base of the tax, previously found in the administrative documents, and those concerning the collection of the tax, previously found in the regulatory part of the General Tax Code, were incorporated in the legislative part of the Code. By a judgment of 10 February 2006, the Conseil d’Etat joined the appeals and rejected them. It considered, based on the impugned provisions of the General Tax Code, that the law “implicitly but necessarily” intended to base the tax on works of art on the selling price and, for want of further clarification on this point, the selling price taken into account as a base for the tax should be understood to include all the costs borne by the purchaser. That being so, the Conseil d’Etat considered that, in basing the tax on works of art on the selling price including commission, the Minister had correctly interpreted the impugned provisions and had not laid down any new rules or overstepped his authority. Proceedings concerning the collection of the tax On 21 June 2005 the applicant company lodged two appeals with the Conseil d’Etat to set aside the decisions by which the Prime Minister had implicitly rejected its requests to revoke the regulations governing the means of collecting the tax on works of art, issued pursuant to the Law of 19 July 1976 introducing the said tax. It contended that the provisions in question were of a legal nature and had been introduced by an authority which had no law-making powers. It further alleged that the legal provisions concerning the persons to whom the tax applied were confusing and unclear, in breach of the principle, enshrined in Article 7 of the Convention, that only the law can define a crime and prescribe a penalty. By a judgment of 5 May 2006, the Conseil d’Etat joined the appeals and rejected them. It considered that the regulatory authority had simply laid down the procedure for collecting the tax, in conformity with the provisions of the Law of 19 July 1976, and had not overstepped its authority or the terms of its remit. It further considered that the argument concerning the principle, enshrined in Article 7 of the Convention, that only the law can define a crime and prescribe a penalty could not be relied on in favour of setting aside the refusal to revoke the regulations in issue.

France

PARTICULAR CIRCUMSTANCES OF THE CASE The applicant is a Belgian national born in 1952. He resides in Antwerp where he exercises the profession of avocat (lawyer). After being enrolled as a pupil avocat on 27 September 1976, he at once opened his own chambers without ever working in the chambers of another avocat; his pupil-master, however, entrusted him with a number of cases and gave him some payment for the work done in regard to them. Mr. Van der Mussele terminated his pupillage on 1 October 1979 and has since then been entered on the register of the Ordre des avocats (Bar Association). On 31 July 1979, the Legal Advice and Defence Office of the Antwerp Bar appointed Mr. Van der Mussele, pursuant to Article 455 of the Judicial Code, to defend one Njie Ebrima, a Gambian national. The latter, who had been arrested two days earlier on suspicion of theft and of dealing in, and possession of, narcotics, had applied under Article 184 bis of the Code of Criminal Procedure for the assistance of an officially appointed avocat. On 3 and 28 August 1979, Mr. Ebrima appeared before a Chamber (chambre du conseil) of the Antwerp Court of First Instance (tribunal de première instance), which was supervising the investigation, for the purpose of a decision as to whether the warrant of arrest issued against him by the investigating judge should remain in force. The Chamber confirmed the warrant on both occasions. It also added to the initial charges a further count of publicly using a false name. Mr. Ebrima appealed against these two orders, but the Indictments Chamber of the Antwerp Court of Appeal upheld them on 14 August and 11 September respectively. On 3 October 1979, the Court of First Instance sentenced him to six months’ and eight days’ imprisonment for theft, public use of a false name and illegal residence; he was acquitted on the remaining charges. On his appeal, the Court of Appeal on 12 November reduced the length of the sentence to that of the period he had spent in detention on remand. The applicant had acted for Mr. Ebrima throughout these proceedings and estimated that he devoted from seventeen to eighteen hours to the matter. Mr. Ebrima was released on 17 December 1979 following representations made by the applicant to the Minister of Justice; he had in the meantime been placed at the disposal of the immigration police with a view to deportation. The following day, the Legal Advice and Defence Office notified Mr. Van der Mussele - whose pupillage had finished more than two and a half months earlier (see paragraph 9 above) - that it was releasing him from the case and that because of Mr. Ebrima’s lack of resources no assessment of fees and disbursements could be made against him. The latter amounted on this occasion to 3,400 BF, made up of 250 BF for preparation of the case-file, 1,800 BF for correspondence, 1,300 BF for travel to and from the prison, the Court of First Instance and the Court of Appeal, and 50 BF in respect of court costs for the copy of a document. The applicant stated that during his pupillage he had dealt with approximately 250 cases, including about 50 cases - representing some 750 hours of work - on which he had acted as officially appointed avocat. He also said that his net monthly income before tax was only 15,800 BF in his first and second years, increasing to 20,800 BF in the third.

Chronology of the applicant’s detention The applicant was deprived of his liberty in connection with two sets of criminal proceedings against him. On 19 January 2007 the Tarnobrzeg Regional Court convicted the applicant of a number of offences, including robbery, currency counterfeiting and destruction of property and sentenced him to five years’ imprisonment (case no. IIAKa 35/07). On 6 March 2009 the Tarnobrzeg District Court convicted him of robbery and battery and sentenced him to three years and six months’ imprisonment (case no. IIK 84/08). From 11 September 2009 until 22 November 2010 and from 24 January until 14 June 2011, the applicant served his prison sentence, alternating between Rzeszów Prison and Cracow Remand Centre’s hospital. Between those two periods and on the latter date, the applicant was granted a licence for temporary leave in view of cardiological ailments from which he was suffering. From 15 July until 21 December 2011 the applicant resumed his prison sentence; he was subsequently moved to Wrocław and Rzeszów Prisons and Katowice Remand Centre. On the latter date he was again granted a licence for temporary leave on health grounds. On 13 June 2012 the applicant was moved to an open-type prison in Chmielów. The applicant’s conduct in prison and regular visits from his wife and relatives In 2008 the applicant got married. He had a child with his wife. From the beginning of his post-conviction detention he lodged regular requests for visits from his wife, his child, his parents, his two brothers and his sister. In addition, the applicant lodged requests for private conjugal visits ( widzenie małżeńskie ), otherwise known as “intimate visits”, which take place in a private room without a guard being present. During the first term of his detention after conviction (between September 2009 and November 2010) the applicant received on average three supervised visits per month, which added up to thirty-seven visits (thirty in Rzeszów Prison and seven in Cracow Remand Centre). That number included seven unaccompanied visits from the applicant’s wife. It appears that in October 2009, the prison administration lodged five requests for the applicant to be punished for various disciplinary infractions. On 14 October 2009 the applicant was punished by being placed for fourteen days in a solitary-confinement cell. On 9 November 2009 the applicant’s supervisor ( wychowawca ) granted a request lodged by the applicant for a conjugal visit, in view of the latter’s improving behaviour. On 23 November 2009 the prison governor decided not to allow the visit and instead to issue an official commendation ( pochwała ), pending a consolidation of the applicant’s good conduct. On 19 January 2010 – after asking the guards escorting him to the hospital on 12 January 2010 to set him free in exchange for future payment – the applicant was given a disciplinary punishment: for fourteen days he was not allowed to receive any visitors or to make phone calls. On 26 February 2010, when taken to the dentist, the applicant made unauthorised contact with his family. These incidents were reported to the prosecution service. As can been seen from the documents submitted to the Court, throughout the applicant’s first term of detention he was at times insolent and uncooperative (thirteen requests for disciplinary punishment were issued in the first ten months of his detention in Rzeszów Prison); however, at times the standard of his behaviour was adequate. He lodged frequent requests to be rewarded by a conjugal visit for his voluntary involvement in prison work and activities. During the second term of his imprisonment, from January until June 2011, the applicant was granted thirteen supervised family visits, including three unaccompanied visits from his wife. According to the applicant’s submission to the Court, four requests for a conjugal visit and two requests for an additional family visit were refused. During the third term of his imprisonment, from July until December 2011, thirteen requests for family visits lodged by the applicant were granted, including three unaccompanied visits from his wife. Two requests for a conjugal visit were refused and, according to the Government’s submission to the Court, two were granted (requests lodged on 12 and 21 November 2011). According to the applicant’s submission to the Court, only one unsupervised conjugal visit to him in Wrocław Prison was granted during his third period of imprisonment. The supervised visits described below, which are otherwise known as “visits at the table” ( widzenie przy stoliku ), took place in a common room where the applicant was allowed to see his visitors in person and in the presence of a prison officer. The applicant was not allowed to kiss or hug his wife during those visits. Refusals to grant unsupervised conjugal visits and the applicant’s interlocutory appeal Refusals to grant the requests filed by the applicant During the first term of his detention after conviction (between September 2009 and November 2010), requests lodged by the applicant or his wife for a conjugal visit were refused fourteen times. It appears that the applicant lodged his first request for a conjugal visit on 25 September 2009. It was refused four days later (see paragraph 25 below). Requests for additional family visits were refused nine times during his first period of detention. In his numerous requests for a conjugal visit, including requests lodged on 17 March 2010 and 19 September 2011, the applicant stated that intimate contact was necessary for him and his wife to maintain their marriage bonds. They also wanted to conceive another child. Contact during supervised family visits was too limited and his relationship with his wife had suffered. In a number of his subsequent requests, the applicant also mentioned the advanced state of his rehabilitation and his good conduct, his work on a prison Internet site, his preparation of information posters, his helping to clean his prison wing and his organising religious meetings. This, in the applicant’s opinion, constituted outstanding conduct and justified granting him a reward. The applicant submitted to the Court that the refusal to grant his requests for a conjugal visit had not been properly reasoned and had been communicated to him only orally by his prison supervisors. The Government submitted to the Court that each of the applicant’s requests for conjugal visits had been refused by means of a handwritten note added (by the governor or deputy governor of the prison in question) to the applicant’s written request. The grounds for each such refusal had been the applicant’s reprehensible attitude and behaviour ( naganna postawa i zachowanie ). That assessment, in turn, had been made on the basis of written reports concerning the applicant’s conduct prepared by prison staff. The Government further submitted to the Court copies of the applicant’s fourteen requests for a conjugal visit. They were lodged on the following dates: 25 September and 2 and 18 November 2009, 4 January and 8 and 17 March, 1, 21 and 28 June and 6 July 2010, and 26 and 31 January, 19 September and 7 November 2011 (see paragraph 20 above). All of those requests were refused. The handwritten note added to the request of 17 March 2010 reads as follows: “Refused (convicted person to be informed) 2010”. The note contains an illegible signature and bears the stamp of the Rzeszów Prison Deputy Governor. A one-page copy of this document was submitted to the Court, the original of which appears to have been two pages long. The handwritten note on the top of the first page of the request of 19 September 2011 reads as follows: “Refused 2011”. The note contains an illegible signature and bears the stamp of the Rzeszów Prison Deputy Governor. The second page of this document bears an additional handwritten note that was signed and stamped by the applicant’s prison supervisor on 19 September 2011. This note is four-lines long and reads as follows: “The request is not approved; educational reasons ( względy wychowawcze ); I informed the applicant of the possibility of applying for the above ‑ mentioned visit under the rewards procedure; exceptional grounds lacking ( brak szczególnych przesłanek ).” The remaining requests for conjugal visits bear similar handwritten notes: the word “refused” ( odmownie ), a date, a stamp and the illegible signature of the Rzeszów Prison Deputy Governor (the first thirteen requests) or of the Wrocław Prison Deputy Governor (the request of 7 November 2011). These requests bear additional handwritten notes, which contain the illegible signatures of (and are stamped by) the applicant’s prison supervisors. These notes read as follows: “I do not support” Nie popieram ); “This is a form of a reward that the convicted person does not deserve at the moment” and “I informed [the applicant] of the possibility to apply for such a visit under the rewards procedure ( w trybie nagrodowym )”. A number of the notes that were made by the applicant’s supervisors also contain short handwritten information to the effect that either “the conduct of the convicted person had been unacceptable”; that requests for disciplinary punishment had been lodged; that the applicant had already received an additional supervised visit from his relatives; or that there was a hierarchy of rewards and he could not choose his rewards as he pleased. The Government stated that other than for the reason of the applicant’s reprehensible behaviour, one request for a conjugal visit (lodged by the applicant on 7 November 2011) had been orally rejected by the Wroclaw Prison Governor because the applicant’s wife had not sent a letter of consent in respect of the proposed conjugal visit. The Government submitted to the Court a copy of the applicant’s handwritten request. The document bears an illegible signature and handwritten notes to the effect that the applicant had just been transferred from another prison without his prisoner’s records and that his temporary records did not contain his wife’s written consent. Two forms were also submitted to the Court, dated 21 November and 12 December 2011, by which the applicant’s supervisor at Wrocław Prison recommended the granting of the applicant’s requests for a conjugal visit in view of the latter’s good behaviour and his work on an information poster. Refusal to grant the requests lodged by the applicant’s wife Irrespective of the applicant’s own requests, his wife lodged a number of requests for a conjugal visit, stating that the couple had only recently been married and that they were trying for another baby. These requests were each refused by means of a written letter of reply signed by the prison governor or his deputy and sent to the applicant’s wife, with a copy being sent to the applicant in prison. Submitted to the Court were letters dated 17 and 28 December 2009 and 12 February, 17 and 23 March 2010 and 28 May 2010 by which the Deputy Governor of Rzeszów Prison refused six requests lodged by the applicant’s wife for a conjugal visit. Five of the six letters stated, without giving any details, that the applicant did not deserve to be so rewarded. In addition, on 25 March 2010 the Governor of Rzeszów Prison informed the applicant’s wife in more elaborate terms that a conjugal visit could only be granted as a reward – for a prisoner’s good conduct or by way of motivation – if it was justified by a prisoner’s exceptional family or personal circumstances. The applicant did not qualify for either measure. His prison supervisors unanimously considered that his behaviour had been highly reprehensible. Many requests that the applicant be subjected to disciplinary punishment had been lodged. His conduct had not improved. Attempts to encourage good behaviour, such as the granting of an additional supervised visit from the applicant’s siblings, had been unsuccessful. The applicant’s interlocutory appeals and complaints about the refusals to grant conjugal visits Appeals under Article 7 of the Code on the Execution of Criminal Sentences On 18 March 2010 the Governor of Rzeszów Prison refused to grant the applicant a conjugal visit with his wife. That decision was issued in the form of a note handwritten on the applicant’s request of 17 March 2010 (see paragraph 22 above). On an unspecified date the applicant lodged with a penitentiary judge ( sędzia penitencjarny ) of the Rzeszów Regional Court ( Sąd Okręgowy ) an interlocutory appeal against that decision. The applicant specifically invoked Article 8 of the European Convention of Human Rights and Article 141 of the Code on the Execution of Criminal Sentences ( Kodeks Karny Wykonawczy ) (“the Code”), arguing essentially that he deserved to be granted the visit requested. In connection with the above-mentioned appeal, the penitentiary judge obtained an explanatory note on the applicant’s conduct ( sprawozdanie z czynności wyjaśniających ) dated 16 April 2010 and signed by the Rzeszów Prison Deputy Governor and lower-ranking staff. The document noted that on 18 March 2010 the deputy governor had refused the applicant’s request for a conjugal visit in the light of the latter’s reprehensible behaviour. The applicant had been dismissive and manipulative. He had received multiple disciplinary punishments. Therefore, granting him a reward would not have served any educational purpose. On 30 April 2010 the penitentiary judge dismissed the applicant’s interlocutory appeal. It was observed that the system of rewards was a measure aimed at helping prisoners’ resocialisation. In principle, rewards should be granted to prisoners willing to actively participate in their rehabilitation programme and not to those who only occasionally showed good conduct. A motivational measure within the meaning of Article 141 of the Code was still a type of a reward and was to be granted only in particularly justified circumstances. In view of his insolence and numerous disciplinary punishments, the applicant had not qualified for any reward. Lastly, it was considered that the refusal to grant the request in question had not hindered family bonding, which had been maintained through supervised visits, correspondence and telephone calls. It appears that on 23 or 28 September 2011 the applicant lodged a similar interlocutory appeal against the refusal of 20 September 2011, which was issued in the form of a handwritten note added to the applicant’s request of 19 September 2011 for a conjugal visit (see paragraphs 25 and 27 above). The case was registered under case no. Kow 1417/On 10 October 2011 the Rzeszów Regional Court obtained an explanatory note on the applicant’s conduct from his senior supervisor ( starszy wychowawca ) at Rzeszów Prison. The note stated that the Deputy Governor of Rzeszów Prison had refused the applicant’s request of 19 September 2011 for a conjugal visit. The applicant complained that he had not received any reasoning in respect of this refusal. The applicant’s supervisor had not approved this request because of the lack of any consolidation of the applicant’s good behaviour. The applicant had been told of the refusal of the request by his supervisor. Having examined the applicant’s file, the senior supervisor had considered that the applicant’s behaviour had not been good enough to warrant the reward sought. The applicant had admittedly been rewarded on two occasions, but two requests for his disciplinary punishment had also been lodged. A copy of the subsequent decision of the penitentiary judge has not been submitted by the parties. Complaints to the prison authorities The applicant and his wife lodged various applications with the prison authorities, complaining that the law did not require the prison authorities to reply in writing to requests for visits lodged by prisoners but only to those lodged by potential visitors. They also stated that the repeated refusals to grant unsupervised conjugal visits had hindered family bonding and had been in breach of Article 141 of the Code. The applicant furthermore alleged that an additional visit and, in particular, a conjugal visit could be granted by a prison governor once a month as a reward for a prisoner’s good behaviour. According to the practice followed at Rzeszów Prison, such visits were granted only to inmates employed by the prison. The applicant alleged that his application for such employment (he had even offered to work for free) had been rejected owing to the limited employment opportunities in the prison and to his poor health. Consequently, additional family visits and conjugal visits were beyond his reach. The applicant submitted to the Court copies of twelve letters of reply sent to the applicant by the Rzeszów Regional Inspectorate of the Prison Service, the Governor of Rzeszów Prison and his deputy, and the Governor of Cracow Remand Centre (dated 6 February, 7 and 21 April, 19 and 25 May, 27 July, 9 August, and 2, 6, 13 and 27 September 2010 and 9 June 2011). All of these letters reiterated the rules on the granting of rewards and noted that the applicant did not qualify for any reward or of motivational measure in view either of his reprehensible conduct or the lack on his part of any special and consolidated resocialisation-related achievements. The authorities also stressed that the applicant enjoyed sufficient contact with his family because visits from them in a common room or visits via an interphone had been regularly authorised. In addition to those arguments, the Governor of Rzeszów Prison observed, in his letters to the applicant of 9 August and 2 September 2010, that the applicant had expressed a very hostile attitude towards his wife (in a letter to his wife dated 20 July 2010 – the letter had been opened and read by the prison authorities). It had therefore been concluded that the unsupervised visit sought could have put the applicant’s wife in danger. Moreover, on 9 June 2011 the Governor of Cracow Remand Centre denied that the applicant had been promised a conjugal visit as a reward for his participation in the cleaning of the remand centre. Work performed by the applicant on 28 May 2011 had been rewarded by means of the authorisation of an additional supervised visit. Complaints lodged with the Minister of Justice and the Ombudsman On 17 February 2010 the applicant wrote to the Minister of Justice, asking that the legal provisions on the granting of conjugal visits to convicted prisoners be amended. In reply (of 8 March 2010), the applicant was informed that conjugal visits could be granted as a reward or as a motivational measure, which was in line with European standards. Refusal to grant such visits could be challenged by lodging a complaint with a penitentiary judge or with the head of the relevant regional Prison Service. On 14 July 2010 the applicant lodged a complaint with the Ombudsman ( Rzecznik Praw Obywatelskich ). On 29 October 2010 the Ombudsman obtained a report from the Rzeszów Regional Inspectorate of the Prison Service. The report concluded that a series of actions (“five positive actions”) undertaken by the applicant had undoubtedly constituted outstanding behaviour. The authorities could nevertheless use their discretion not to reward the applicant. The law did not require that each positive action shown by a prisoner be rewarded. By a letter of 26 May 2011 the Ombudsman informed the applicant that the basic forms of family contact in prison were: visits that took place in a common room, where a prisoner was allowed to see his visitors in person and in the presence of a prison guard; telephone calls; and letters. Conjugal visits could be exceptionally granted by a remand centre or a prison governor as a reward for a prisoner’s good behaviour. Conjugal visits, therefore, constituted not a prisoner’s right but a privilege.

P1-1, 6

In 1998, 2000 and 2001 the applicant instituted three separate sets of proceedings in the Zhovtovodskyi Town Court ( hereinafter – the Town Court) against the Joint Stock Company “Electron-Gaz” (the “EG”) – in which the State held 9% of the share capital – to recover unpaid salary and compensation. By three judgments of 12 January 1999, 9 June 2000 and 21 February 2001 the court awarded the applicant the total of UAH 8,634.89 [1] in salary arrears and other payments. On 7 March 2003 the Commercial Court of the Dnipropetrovsk Region initiated bankruptcy proceedings against the EG, which are still pending. On 22 September 2003, in the course of bankruptcy proceedings against the EG and following Article 86 of the Code of Commercial Proceedings and Articles 14 and 15 of the Law of <COUNTRY> “On the Restoration of a Debtor's Solvency or the Declaration of Bankruptcy”, the Commercial Court of the Dnipropetrovsk Region ordered the inclusion of the Town Court's awards given in the applicant's favour, as well as his additional claim for UAH 4,332.05 [2] , which the EG had recognised as salary arrears due him for 2000 - 2002, into the list of creditors' claims. On 17 May 2002 the applicant was informed by the Bailiffs' Service that the judgments in his favour were not executed due to the lack of funds of the debtor and that the procedure for the forced sale of assets belonging to the debtor was barred by the Law on the Introduction of a Moratorium on the Forced Sale of Property of 29 November 2001. In August 2005 the judgments of 12 January 1999, 9 June 2000 and 21 February 2001 were fully enforced. On 7 April 2006 the applicant instituted one more set of proceedings against the same debtor (EG) in the Town Court, seeking, inter alia , compensation of UAH 4,332.05 recognized by the defendant as salary arrears due him for 2000 - 2002. On 5 June 2006 the court partly allowed his claim and ordered the defendant to pay him UAH 3,829.94 [3] in salary arrears and UAH 500 [4] in compensation of non-pecuniary damage. This decision was not appealed against and became final.

Ukraine

6

He was formerly a shareholder in two private companies, O. and , which were liquidated on the basis of decisions by other shareholders. Accordingly, the local authorities struck the companies out of the list of legal entities. The applicant instituted several sets of court proceedings in that regard. A. Proceedings concerning company O. On 21 April 2003 the applicant instituted proceedings in the Zhovtnevyy District Court of Dnipro (“the District Court”) against the local council and three private persons, challenging the company’s liquidation, claiming back his shares and seeking compensation. The applicant made changes to his claims on a number of occasions. In the course of the proceedings, about twenty of the approximately fifty hearings were adjourned at the request of one or more of the parties, or owing to their failure to appear. Between July 2005 and February 2007 no hearings were held pending the outcome of appeals in cassation against a procedural decision by one or other of the defendant parties. Between May 2007 and July 2008 courts at three levels of jurisdiction examined the question of whether the case should be considered within the framework of civil or commercial proceedings. Eventually, it was decided that the case should be examined under the rules of civil procedure and examination on the merits resumed in August 2008. Overall, the proceedings lasted for over seven years and eight months, the final decision being taken by the Supreme Court on 29 December 2010. That court upheld decisions of the District Court of 30 June 2010 and of the Dnipro Regional Court of Appeal (“the Court of Appeal”) of 16 September 2010 rejecting the applicant’s claims as unsubstantiated. The courts found that there had been no violation of the applicant’s rights as a shareholder of O. B. Proceedings concerning company Civil claim In January 2005 the applicant brought a civil claim with the District Court against the local council and a number of private persons, challenging the liquidation of company and the authorities’ decisions in that regard. He also sought the restoration of the company as a legal entity, recovery of his shareholding and an order to declare the minutes of the shareholders’ general assembly invalid. On 2 June 2006, the court decided, in the applicant’s presence, to leave his claim without examination, finding that it concerned essentially the same issue as one which it had examined in proceedings concerning the applicant’s administrative claim (see paragraph 15 and 16 below). On 7 June 2006 the applicant lodged a statement of intent with the Court of Appeal to appeal against the decision of 2 June 2006. On 16 June 2006 he lodged an appeal, stating, inter alia , that that decision had been incorrect, as his administrative claim had concerned only a part of the issues raised in the civil claim. 13 . On 25 July 2006 the Court of Appeal left the applicant’s appeal without examination, finding that the statement of intent to appeal had been lodged outside the five-day time-limit envisaged by Article 294 § 2 of the Code of Civil Procedure of 2004 (see paragraph 20 below). According to the appeal decision, the time-limit in question had started to run from the date of the pronouncement of the contested decision. On 9 October 2006 the Supreme Court dismissed the applicant’s appeal in cassation, finding no fault on the part of the lower courts. Administrative claim In November 2005 the applicant brought an administrative claim in the District Court against the head of the local council, seeking the annulment of the decision striking out of the list of legal entities. On 17 April 2006 the court, having examined the case pursuant to the Code of Administrative Justice of 2005, rejected the applicant’s claim as unsubstantiated, finding that the contested decision had been lawful. The court further noted that the applicant had made allegations of the unlawfulness of the shareholders’ decision to liquidate the company, which could not be examined in the framework of administrative proceedings. It also noted that the applicant’s claim had been brought out of time, though it did not consider it necessary to reject it on that ground. On 20 September 2006 the Court of Appeal upheld the decision of 17 April 2006. 18 . On 28 October 2008 the Higher Administrative Court quashed the decisions of the lower courts and terminated the proceedings. It found that the claim should not have been examined within the framework of administrative proceedings, as it essentially concerned a property dispute. The Higher Administrative Court noted that the applicant’s claim could be heard under the Code of Civil Procedure of 2004.

5

On 30 March 1998 criminal proceedings were instituted against the applicant, being a director of a small private company, and Ms E., a chief accountant of the company, on suspicion of credit fraud. According to the materials in the case-file, on 3 September 1998 the Prosecutor of the Leninsky District of Lugansk ordered the applicant's detention on remand. The parties did not provide a copy of that order. On 4 September 1998 the proceedings were suspended since the applicant failed to appear before the investigator. On the same date he was put on the list of wanted persons. On 27 September 2001 the applicant, who at that time resided in Russia, was arrested by the Russian police pursuant to an international warrant for his arrest issued by the Ukrainian authorities. According to the Government's observations, on 2 October 2001 the preventive measure of detention on remand was upheld. The Government failed to provide a copy of that order. On 22 October 2001 the Prosecutor General's Office of <COUNTRY> made a request to the Prosecutor General's Office of the <COUNTRY> for the applicant's extradition under the 1993 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases (the “Minsk Convention”). On 25 October 2010 the request was granted. On 1 February 2002 the Prosecutor of the Leninsky District of Lugansk extended the applicant's detention on remand until 15 March 2002. Once in <COUNTRY> on 6 February 2002, the applicant was detained on remand. On 5 March 2002 the applicant was charged with financial fraud and forgery . Between 5 March 2002 and 21 May 2002 the applicant was acquainted himself with the case-file. On 21 May 2002 the applicant asked the investigator to replace the detention with another preventive measure alleging that he had health problems. On the same date the request was dismissed since the applicant failed to provide any proves in support of his allegations. On 2 July 2002 the Leninsky District Prosecutor's Office of Lugansk submitted the applicant's case to the court for examination on the merits. On 15 August 2002 the Leninsky District Court of Lugansk (hereafter “the Leninsky Court”) held a preparatory hearing. It found that the bill of indictment needed redrafting. The case-file was sent back to the Prosecutor's Office. The Leninsky Court also rejected the applicant's request for release, having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure. On 20 September 2002 the applicant's criminal case was sent to the Leninsky Court. On 4 November 2002 the latter terminated the criminal proceedings against Ms E. On 4 October 2002, 9 December 2002, 10 December 2002, 19 December 2002 and on an unspecified date in June 2003 the applicant asked the Leninsky Court to replace the detention on remand with another preventive measure. On 4 November 2002, 9 December 2002, 16 December 2002, 10 January 2003 and 27 June 2003 the Leninsky Court respectively dismissed his requests, having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure. On 21 July 2003 the Leninsky Court convicted the applicant of financial fraud and sentenced him to one year, nine months and twenty four days' imprisonment, less the time spent in detention pending extradition in Russia and in detention on remand in <COUNTRY>. This sentence meant the applicant's immediate release since he had already served it.

Russian Federation, Ukraine

Particular circumstances of the case A. Background Mr Antero Rieme, a Finnish citizen born in 1940, resides at Tumba, <COUNTRY>, and is a metal worker by profession. He has a daughter, Susanne, together with Mrs J., with whom he cohabited from January 1976 until March 1977. The latter had legal custody of Susanne from the time of her birth on 28 October 1976. In 1980 the applicant met Mrs Anita Mäkinen. They have been living together since that year and have been married since early 1983; she has taken the name of Anita Rieme. On 26 September 1977, when Susanne was eleven months old, the Southern Social District Council (södra sociala distriktsnämnden) of Södertälje ("the Social Council") decided that she should be taken into public care pursuant to sections 25(a) and 29 of the Child Welfare Act 1960 (barnavårdslagen 1960:97 - "the 1960 Act"), because of her mother's alcohol problems. Shortly afterwards, she was placed in a foster home - with the Forsberg family - where she stayed until she moved to her father's home in August 1989 (see paragraphs 23-24 below). She returned to the foster home around Christmas 1989 (see paragraph 25 below). In January 1978 the applicant applied to the District Court (tingsrätten) of Södertälje for legal custody of Susanne. In a custody report to the court, dated 21 September 1978, the social welfare authorities opposed his request, recommending instead that a special legal guardian be appointed. The report observed, inter alia, that the applicant had been reported several times for offences of drunkenness. It also noted that Susanne had become completely integrated into the foster family and that the Forsberg children had accepted her as their own sister. Mr and Mrs Forsberg had taken on their role as foster parents fully conscious of the realities of the situation. They were prepared to take care of Susanne for as long as necessary, on the understanding that this might be until adulthood. Mr Rieme withdrew his request, allegedly because the social welfare authorities had "threatened" to revoke his right of access to Susanne. On 30 November 1981 the applicant again asked the District Court to grant him legal custody. As appears from the minutes of the court's hearing on 17 March 1982, the court dismissed Mr Rieme's request for a provisional transfer of custody, so that the social welfare authorities could carry out a speedy examination of the question of custody. The relevant report was completed on 27 June 1983. It noted, inter alia, that according to a statement by the foster parents to the social welfare authorities, Susanne was not looked upon as a "foster child" - the expression was not even used in the foster home. Moreover, they had stated that they did not know at the outset how long Susanne's placement with them would last but that it had become permanent. The report concluded that it was not in Susanne's best interests to transfer the custody to the applicant. Instead, custody should be given to a third person. Nevertheless, by judgment of 28 September 1983, the court ordered that the custody of Susanne be transferred to Mr Rieme, having regard to, inter alia, the following considerations. Whilst Susanne's placement in the foster home seemed consistent with her best interests, the applicant had shown active concern for her and had endeavoured to maintain contact. To an outsider, his endeavours could appear to have been unwise and might not correspond to a modern view of children's needs. However, one should not attach undue importance to the applicant's lack of insight in this matter. His wish to take care of Susanne was not unusual and seemed natural. Furthermore, a transfer of custody would not lead to termination of Susanne's placement in the foster home but would, on the other hand, enable the applicant to have the issue legally determined in the light of any changes which might occur in their situation. Moreover, a transfer could stimulate further contacts and would be valuable to Susanne in the long run. The Social Council should see to it that such contacts did not conflict with her best interests. Susanne's mother, Mrs J., appealed to the Svea Court of Appeal (Svea hovrätt) which, however, confirmed the transfer of custody in a judgment of 21 June 1984. B. Termination of public care and prohibition on removal In the meantime, on 11 October 1983, the applicant had asked the Social Council, firstly, to terminate the public care of Susanne and, secondly, to grant him access to her at regular intervals. The social welfare officers responsible for the case carried out a review of the question of removing Susanne from the foster home and, on 16 October 1984, following a hearing at which the applicant, his lawyer and his wife - Mrs Anita Rieme - were present, the Social Council granted the care claim but did not determine the access claim. At the same time, it decided, pursuant to section 28 of the Social Services Act 1980 (socialtjänstlagen 1980:620), to prohibit the applicant from removing Susanne from the foster home, on the ground that there was "a risk, which was not of a minor nature", that her mental health could thereby be harmed. This decision was based on the social welfare officers' report and recommendation to the Social Council, dated 28 September 1984. The report, which was attached to the recommendation, set out the background of the case and analysed the relationships between father and daughter, as well as interviews which the social workers had carried out with the Rieme and Forsberg spouses. It also reviewed Susanne's health and development and her need to remain with the Forsberg family. The report relied on a psychiatric opinion, appended thereto, from the Institution for Child and Youth Psychiatry ("PBU") in Stockholm which was dated 7 June 1984 and signed by Mr Jarkko Rantanen, psychologist, and Dr Sari Granström, chief physician. The opinion observed, inter alia, the following: Susanne had been living in the foster home since she was eleven months old. Her contacts with the biological mother had been interrupted whereas those with the applicant had continued on a regular basis. However, in her eyes, the foster parents assumed the role of her parents; she had not developed equally strong emotional ties with the applicant and his wife. Similarly, she considered the other children (three natural daughters and one foster son) in the Forsberg home as her own brother and sisters. Removing Susanne from this home would involve too many changes for her: she would not only lose her much needed feeling of security and psychological support derived from the Forsberg home, her friends, her school and daily routines but she would also be faced with unreasonably difficult problems of adaptation in a new environment. Susanne had shown a tendency to react physically to significant changes. She suffered from various psychosomatic disorders - including enuresis and recurring stomach pains which were likely to get worse in the event of a removal. This would also entail a risk of her becoming increasingly depressed and distant. Before removal could take place, Susanne's relationship with the applicant and his wife needed to evolve further. The question of removal should not be discussed with her until she had become sufficiently mature and she should not be subjected to further examinations related to this issue within the next few years. Further contacts between the applicant and Susanne should develop in collaboration with the foster parents. If those ties, which had already been established through regular meetings, were to be able to continue, the applicant would need a great deal of support in order to be capable of maintaining and furthering their relationship, with due regard to the needs of his daughter. First set of proceedings challenging the prohibition on removal The applicant lodged an appeal with the County Administrative Court (länsrätten) in Stockholm against the prohibition on removal. The court held a hearing in camera on 22 January 1985 at which the applicant and his wife were present and represented by counsel. As witnesses, it heard the foster parents, at the applicant's request, and Dr Granström and Mr Rantanen, at the request of the Social Council. In its judgment of 25 January 1985, the court recalled that the Social Council's decision to terminate the public care of Susanne implied that the applicant's personal circumstances did not as such constitute an obstacle to reuniting them. On the other hand, the court had regard to the Social Council's assessment, based on the above-mentioned psychiatric opinion (see paragraph 14 above), that remaining in the foster home was in Susanne's best interests. She was a sensitive, fragile and vulnerable girl who would lose her feeling of security and show certain psychosomatic symptoms if she were to be immediately removed from the foster home. Against this background, the court considered that removal would involve a risk, which was not of a minor nature, of harming her mental health. On balancing Susanne's interests against those of the applicant, for which the court expressed great sympathy, it found that there were preponderant reasons in favour of allowing Susanne to remain in the foster home until further notice. Consequently, the appeal was dismissed. Mr Rieme appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm, requesting that the prohibition on removal be lifted and, in the alternative, that the duration of the prohibition be limited. The court dismissed the appeal by judgment of 2 August 1985, which contained the following reasons: "The aim of the provisions of section 28 of the Social Services Act is to safeguard the best interests of the child. Among the circumstances which must be considered in that context are the age of the child and his or her abilities and emotional ties. Furthermore, regard must be had, inter alia, to the child's own wishes and to how long the child has been cared for in the [foster] home. Susanne ... has been cared for in the foster home since October 1977 and thus for the major part of her life. She is considered to be a sensitive child and has had certain psychosomatic symptoms. After the County Administrative Court's examination of the question of the removal of Susanne, it appears that the relationship between Susanne and [the applicant] has developed in a favourable manner. The Administrative Court of Appeal finds, however, that an enforced removal still involves a risk of harming Susanne's mental health, a risk which is not of a minor nature. The request to lift the prohibition from taking Susanne away from the foster home cannot therefore be granted. The question of when the prohibition can be lifted depends on how the contacts between [the applicant] and Susanne develop in the future. The Administrative Court of Appeal finds that the prohibition cannot at present be limited in time." On 23 September 1985 the applicant applied for leave to appeal to the Supreme Administrative Court (regeringsrätten). Leave was refused on 26 March 1986. Particulars concerning the applicant's contacts with his daughter The social welfare officers' above-mentioned report (see paragraphs 13-14 above) provided the following information on the applicant's contacts with Susanne: "When Susanne was taken into public care and placed in a foster home in 1977, Antero Rieme maintained quite regular contacts with her. Until early February 1978 he visited her about once a week. Subsequently, the frequency of visits decreased and, for a period, he did not visit Susanne at all. During this period [he] kept himself informed about [her] well-being through Esko Forsberg, who was a colleague at that time. The following year the visits became more regular [although] with varying frequency. Susanne recognised [her father] and called him 'my second daddy'. [He] showed interest in [her]. In August 1981 [he] expressed the wish that [she] come to his and Anita's ... home for some weekends. He planned to apply for the custody of the child and wanted [the care] to be gradually transferred to him. The social welfare officer then responsible for the case would not assist in arranging for Susanne's transfer until the question of custody had been determined, but approved of [her] visiting the applicant occasionally at weekends, when one of the Forsberg spouses was to accompany her. It was also decided that [the applicant] should visit Susanne in the foster home once a month. In connection with her review of the question of custody, dated [27 June 1983], Yvonne Zäll, Head of Section, considered also the issue of a right of access. It was agreed that the entire Forsberg family should visit the Rieme couple and, moreover, that Susanne should visit them, accompanied by Minna Forsberg. In the beginning, Susanne would not go alone - without Riita and Minna Forsberg - but after a while it became easier for her to be on her own with the Rieme spouses. She has only been there at daytime, as she did not want to stay overnight. It follows from the review of the question of custody that Susanne was happy about the father's visits to the [foster] family and that the foster parents' attitude to them was positive. Since the District Court decided that the custody of Susanne should be vested in Antero Rieme, the Social Council ... reviewed the question of removal. An agreement was reached with Antero Rieme that access, pending the review, should take place as follows: Susanne, Antero and Anita Rieme should meet two Saturdays a month, one Saturday ... [at Forsbergs' home] and one Saturday ... [at] the Riemes'. Access should take place on condition that Susanne was positive about [it]. The father wished to have the access extended so as to receive Susanne for visits at his home every other weekend from Friday night to Sunday night and for a week in connection with the weekend of New Year's Eve. Since it was of importance not to disturb or confuse Susanne, the social welfare authorities and [the applicant] reached a written agreement that no changes should be made concerning access pending the examination [of the question of removal]. Nevertheless, in practice the access arrangements were changed since the social workers agreed with Antero Rieme and the Forsberg family that Susanne could spend the night at the Riemes' ... home, should she so wish. So far she has not. She has clearly stated that she does not wish to stay overnight at [their] home. She has not been able to provide any reasons for this. It has also happened that the Rieme spouses came to the foster home merely to collect her [, without actually visiting her in her home environment]." According to the applicant, the social welfare authorities had accepted, subject to further arrangements, that the child could stay overnight at his home in the month of May 1984. However, he stated that this did not materialise, apparently because they had told the foster parents not to mention anything to Susanne about it. In a memorandum of 14 June 1985 addressed to the Administrative Court of Appeal (in the proceedings concerning prohibition on removal) the social welfare officer responsible for the case stressed that contacts between Susanne and the applicant should evolve slowly and gradually. Her own wishes in this respect were of particular importance. At her own request, she had stayed overnight three times at her father's home during the last couple of months. She had clearly indicated that, for the time being, she only wished to spend one night at a time there and that she did not wish to join her father and his wife for a fortnight's holiday in <COUNTRY> in the summer of 1985. However, according to the applicant, Susanne had expressed a desire to go with them on holiday to <COUNTRY>. When he contacted the social welfare officer on the issue, the latter maintained, in her letter dated 24 June 1985, that Susanne had stated the contrary to her and that one should respect Susanne's choice. Meanwhile, she hoped that the applicant and Susanne would get to know each other better by the time of the next school vacation or another holiday. In addition, under section 28 of the Social Services Act, the Social Council had power to decide where Susanne was to stay. Consequently, the applicant was not in a position to decide the matter. As from May 1986 Susanne stayed overnight every second week- end with the applicant and his wife. She spent parts of her summer holidays with them in 1986 and 1987 in <COUNTRY> and about one week at Christmas 1987, as well as Easter 1988 and New Year 1988-In a memorandum of 15 December 1987 to the Ministry for Foreign Affairs, apparently prepared in connection with the proceedings before the Commission, the Social Council noted that the measures taken by the social welfare authorities to bring about closer contact between the applicant and his daughter, possibly leading to her removal from the foster home, had essentially consisted of providing support to Susanne and the foster home in a manner aimed at making her meetings and holidays with the applicant as natural as possible. Furthermore, the social welfare authorities had supported initiatives taken by the foster parents to improve their contacts with the applicant. However, according to the memorandum, the applicant had declined contact with the social welfare authorities since the autumn of 1985, making it more difficult for them to work for a better relationship between him and the foster parents. Furthermore, Susanne was mature for her age and had become increasingly able to express her own views. The social welfare authorities had considered as decisive her wishes as to how the contacts with the applicant were to be arranged. She had stayed in the foster home since the age of one and had strong emotional ties with the foster parents. The continued development of the contacts between the applicant and Susanne should therefore take place at her own pace and removal should only occur when she desired it. E. Second set of proceedings challenging the prohibition on removal On 1 September 1989 the applicant again asked the Social Council to lift the prohibition on removal. At that time, Susanne had been staying with him since school started in August. After reviewing the matter, the social welfare officers submitted a report to the Social Council, noting that Susanne's psychosomatic symptoms had disappeared a few years earlier and that her contacts with the applicant and his wife had been close and had increased steadily at her own pace. The relationship between the applicant and the foster parents had been very tense over the years and for long periods they had not had any contact at all. Susanne had found herself in the difficult position of having to move backwards and forwards between the families. However, she seemed to have coped with the situation and had showed attachment to both sets of parents who were now co-operating in her best interests. Since the end of August 1989 she had been staying with the Riemes, with her own and the foster parents' agreement, and was seeing the foster parents whenever she wished. In view of this, the social welfare officers recommended that the prohibition on removal be lifted. On 20 November 1989 the Social Council terminated the prohibition on removal. F. Recent developments Around Christmas 1989 Susanne returned to the Forsbergs' home, where at her own wish she has been living ever since. In January 1990 the Forsbergs and the Riemes and Susanne met with the social welfare authorities in Södertälje. On this occasion, the applicant did not seem prepared to accept her staying with the Forsberg family, whereas the latter stated that they wished her to do so and would not force her to leave. The social welfare authorities have as yet not taken any formal decision on the matter. The applicant and his daughter have been in contact since her return to the Forsberg family; for instance, she visited him at Easter 1991. Relevant domestic law Decisions concerning the applicant's child were based on the Child Welfare Act 1960 (barnavårdslagen 1960:97 - "the 1960 Act"), the Social Services Act 1980 (socialtjänstlagen 1980:620) and the 1980 Act containing Special Provisions on the Care of Young Persons (lagen 1980:621 med särskilda bestämmelser om vård av unga - "the 1980 Act"). The Social Services Act 1980 contains provisions regarding supportive and preventive measures effected with the approval of the individuals concerned. The 1980 Act (1980:621), which provided for compulsory care measures, complemented the Social Services Act 1980; when they entered into force on 1 January 1982, they replaced the 1960 Act. In general, decisions taken under the 1960 Act, which were still in force on 31 December 1981, were considered to have been taken under the 1980 Act. As from 1 July 1990 the relevant legislation has been amended (see paragraphs 40-43 below). A. Compulsory care Under section 25(a) of the 1960 Act, the competent local authority in child-care matters - the Child Welfare Board (barnavårdsnämnden) or, in Stockholm and Gothenburg, the Social District Council - was obliged to intervene: "[if] a person, not yet eighteen years of age, is maltreated in his home or otherwise treated there in a manner endangering his bodily or mental health, or if his development is jeopardised by the unfitness of his parent or other guardians responsible for his upbringing or by their inability to raise the child." If the Board found that the child's situation corresponded to that described in section 25 of the 1960 Act, it had, before resorting to care, to endeavour to remedy the matter by preventive measures (förebyggande åtgärder). These could consist of one or more of the following steps: advice, material support, admonition or warning, orders pertaining to the child's living conditions, or supervision (section 26). If such measures proved insufficient or were considered pointless, the Board had to place the child in care (section 29). The conditions for compulsory care under the 1980 Act were set out in section 1, which read: "Care is to be provided pursuant to this Act for persons under eighteen years of age if it may be presumed that the necessary care cannot be given to the young person with the consent of the person or persons having custody of him and, in the case of a young person aged fifteen or more, with the consent of the young person. Care is to be provided for a young person if lack of care for him or any other condition in the home entails a danger to his health or development, or the young person is seriously endangering his health or development by abuse of addictive substances, criminal activity or any other comparable behaviour. ... " It is primarily the responsibility of the municipalities to promote a positive development for the young. For this purpose each municipality has a Social District Council, composed of lay members assisted by a staff of professional social workers. The Child Welfare Board - or, in Stockholm and Gothenburg, the Social District Council - had power to take decisions on public care pursuant to the 1960 Act. Under the 1980 Act, such decisions were taken by the County Administrative Court, on application by the Social Council. When a decision on public care had been taken, the Social Council (formerly the Child Welfare Board under the 1960 Act) was to implement it, by attending to the practical details of such matters as placement, education and other treatment of the child (sections 35-36 and 38-41 of the 1960 Act and sections 11-16 of the 1980 Act). The 1980 Act required the care of the child to be carried out in such a way as to enable him to have close contacts with his relatives and to visit his home. This requirement could mean that the child returns to his home, after a period, to live there, although he is still formally under public care (section 11 of the 1980 Act). Under section 42(1) of the 1960 Act, compulsory care had to be discontinued as soon as the aims of the care measures were deemed to have been achieved. The corresponding rule in the 1980 Act provided that the Social Council was obliged to monitor carefully the care and to terminate it when it was no longer necessary (section 5). At the relevant time, section 41 of the Social Services Ordinance 1981 (socialtjänstförordningen 1981:750) laid down that a care decision based on unsatisfactory conditions in the child's home must be reconsidered by the Social Council regularly and at least once a year. Both before and after the entry into force of the 1980 Act, a parent who has custody of the child could, under the general principles of Swedish administrative law, at any time request that the decision on public care be terminated. According to a report by a special committee on social affairs (Betänkande av Socialberedningen - SOU 1986:20), the social welfare authorities in a number of municipalities have been operating a distinction between support placement (stödplacering) and substitute placement (ersättningsplacering), the latter designating a more permanent form of placement. B. Prohibition on removal The Social Council could issue a prohibition on removal under section 28 of the Social Services Act, which read as follows: "The Social Council may for a certain period of time or until further notice prohibit the guardian of a minor from taking the minor from a home referred to in section 25 [e. a foster home], if there is a risk, which is not of a minor nature, of harming the child's physical or mental health if separated from that home. If there are reasonable grounds to assume that there is such a risk, although the necessary investigations have not been completed, a temporary prohibition may be issued for a maximum period of four weeks, pending the final decision in the matter. A prohibition issued under this section does not prevent a removal of the child from the home on the basis of a decision under Chapter 21 of the Parental Code." The preparatory work (Prop. 1979/80:1, p. 541) relevant to this provision mentioned that a purely passing disturbance or other occasional disadvantage to the child was not sufficient ground for issuing a prohibition on removal. It stated that the factors to be considered when deciding whether or not to issue such a prohibition included the child's age, degree of development, character, emotional ties and present and prospective living conditions, as well as the time he had been cared for away from the parents and his contacts with them while separated. If the child had reached the age of 15, his own preference should not be opposed without good reasons; if he was younger, it was still an important factor to be taken into account. The Standing Social Committee of the Parliament stated in its report (SOU 1979/80:44, p. 78), inter alia, that a prohibition might be issued if removal could involve a risk of harm to the child's physical or mental health, thus even where no serious objections existed in regard to the guardian. The Committee also stressed that the provision was aimed at safeguarding the best interests of the child and that those interests must prevail whenever they conflicted with the guardian's interest in deciding the domicile of the child. It also took as its point of departure the assumption that a separation generally involved a risk of harm to the child. Repeated transfers and transfers which took place after a long time, when the child had developed strong links with the foster home, should thus not be accepted without good reasons: the child's need for secure relations and living conditions should be decisive. Section 28 of the Social Services Act did not apply to children who were being cared for in foster homes under section 1 of the 1980 Act. As long as such care continued, the right of the guardian to determine the domicile of the child was suspended. Whilst that right in principle revived on the termination of such care, it could be further suspended by an application of section 28 by the social welfare authorities. Under section 73 of the Social Services Act, a decision taken under section 28 could be appealed to the administrative courts. In practice, besides the natural parents both the child concerned and the foster parents have been allowed to lodge such appeals. In the proceedings before the administrative courts, a special guardian may be appointed to protect the interests of the child, should these come into conflict with those of the child's legal guardian. Regulation of access During compulsory care The 1960 Act provided that the Child Welfare Board could regulate a parent's right of access to his child in care to the extent that it found this reasonable in the light of the aims of the care decision, the upbringing of the child or other circumstances (section 41). Under the 1980 Act, restrictions on access could be imposed by the Social Council, in so far as this was necessary for the purposes of the care decision (section 16). Such decisions could be appealed to the administrative courts by both the parents and the child. During prohibition on removal On 18 July 1988 the Supreme Administrative Court held that a decision by the Social Council to restrict the access rights of the appellants, Mr and Mrs Olsson, while a prohibition on removal under section 28 of the Social Services Act was in force had no legal effect and that no appeal to the administrative courts would lie against such a decision. The court stated: "Under section 16 of the [1980 Act] ..., a Social Council may restrict the right of access in respect of children taken into public care under this Act. As regards the right of access to children while a prohibition on removal is in force, no similar power has been vested in the Social Council in the relevant legislation. As there is no legal provision giving the Social Council power to restrict the right of access during the validity of the prohibition on removal ..., the instructions given by the Chairman of the Social Council in order to limit the right of access have no legal effect. Nor can any right of appeal be inferred from general principles of administrative law or from the European Convention on Human Rights." New legislation The provisions of the Social Services Act which related to the prohibition on removal are now contained, in amended form, in the 1990 Act containing Special Provisions on the Care of Young Persons (lagen 1990:52 med särskilda bestämmelser om vård av unga - "the 1990 Act"). This entered into force on 1 July 1990. Section 24 of the 1990 Act, which corresponds to the previous section 28 of the Social Services Act (see paragraph 35 above), provides that the County Administrative Court may, on application by the Social Council, impose a prohibition on removal for a certain time or until further notice. The condition for such a prohibition is that there must be "an apparent risk (påtaglig risk) that the young person's health and development will be harmed if he is separated from the home". Although this wording differs from that of section 28 of the Social Services Act, it was not intended, according to the preparatory work (Prop. 1989/90:28, p. 83), to introduce thereby a new standard. According to section 26 of the 1990 Act, the Social Council shall, at least once every three months, consider whether a prohibition on removal is still necessary. If it is not, it shall lift the prohibition. Pursuant to section 31, the Social Council may regulate the parent's access to the child if it is necessary in view of the purposes of the prohibition on removal.

Finland, Sweden

On 20 March 2001 Mrs K was questioned by the police after shouting from the window of the applicant’s room. She stated that she had met the applicant that afternoon in a public house. After visiting further pubs she had accompanied him to his rented room where, she alleged, he had attempted to rape her. On 21 March 2001 Mrs K was again questioned by the police and criminal proceedings were instituted against the applicant. Between 04 p.and 16 p.on 18 April 2001 Mrs K was questioned by the investigating judge in the presence of the applicant, his lawyer, a psychiatric expert Mr H and the court stenographer. The applicant and his lawyer were given the opportunity to put questions to Mrs K and the hearing was recorded on video. Mrs K stated that in the course of the attempted rape the applicant had hit her across the left temple, grabbed her by the hair and threatened her with a knife. In the course of the struggle she had injured her hand on the knife. Mrs K also stated that she had worked as a prostitute between 1990 and 1996/97, but said that the applicant had been unaware of this. At the end of the examination the applicant’s counsel stated that she had no further questions to put to Mrs K. Subsequently the questioning was transcribed and the transcript ran to 29 pages. On 9 October 2001 the Graz Regional Court ( Landesgericht ) convicted the applicant of attempted rape with violence. At the trial Mrs K refused to give evidence. The applicant appealed to the Supreme Court ( Oberster Gerichtshof ), which upheld his plea of nullity and quashed the conviction. It found that the proceedings before the Regional Court were defective under Article 258 of the Code of Criminal Procedure ( Strafprozeßrechtsordnung ) as the Regional Court had based its findings on Mrs K’s statements to the police, which had not been read out at the trial. The Regional Court then resumed the proceedings in a new composition. At hearings on 1 July, 26 August, 15 October and 19 November 2002, it heard evidence from the applicant and further witnesses. These witnesses included Mr S, a waiter working in one of the pubs which the applicant had visited with Mrs K, Mrs P, the innkeeper of another pub, and Mr L, Mrs K’s partner. In the course of their testimony these witnesses made inter alia the following statements: Mr S, who had previously stated that he had noticed a blue mark on Mrs K’s left temple, now said that he did not know exactly where the blue mark was and that he had not seen Mrs K’s face. Mrs P stated that Mrs K’s behaviour often became erratic after she had consumed alcohol, that she frequently sought refuge from her partner and later invented a pretext, that her partner beat her and that she often had black eyes. Mr L stated that Mrs K had worked as a prostitute but had stopped doing so some months prior to the incident. The Regional Court heard evidence from four police officers who had been called to the scene. All of them had noticed a knife wound on Mrs K’s hand. Two officers had noticed a slight swelling on her temple. Another police officer had noticed loose strands of Mrs K’s hair including some on the applicant’s clothes. The Regional Court also heard evidence from Mr H, who had submitted an expert opinion on the question of the extent to which Mrs K’s alcohol level at the material time had affected her ability to remember the events. Mr H stated that Mrs K’s statements were likely to be true. Mrs K was invited to give evidence while the applicant, pursuant to Article 250 of the Code of Criminal Procedure, was taken into an adjacent room. However, as Article 152 § 1 subsection 2a of the Code of Criminal Procedure entitled her to do, Mrs K refused to give evidence and requested that the statements she had made to the police and the investigating judge be read out instead. The court granted her request. The Court also granted the applicant’s request for the video recording of her deposition before the investigating judge to be shown. However, when played, the video recording turned out to be a blank tape. The applicant contested Mrs K’s credibility. He argued in particular that her account of how she had come to be in his room and of her conduct after the alleged offence was not plausible and requested the court to inspect the scene. He further contended that there were a number of discrepancies between the events as described by Mrs K to the police and those she had described to the investigating judge, as well as between her evidence and the evidence given by the witnesses, Mr S, Mr L and Mrs P, at the trial. He therefore requested the court to call Mrs K again and, to the extent his opinion was of relevance for the court, the expert witness Mr H. The applicant submitted that Mr H should also give evidence on the methods he had used to assess Mrs K’s credibility and the kind of questions he had asked when she appeared before the investigating judge. The applicant argued, lastly, that, in view of the large number of contradictions in the evidence given by Mrs K, who was the sole prosecution witness, it was essential for the court to view the video recording of her hearing in order to be able to assess her credibility. He added that, if the recording could not be shown, then he should be given the benefit of the doubt and acquitted. The court dismissed the applicant’s requests for the further taking of evidence. It did not consider it useful to visit the scene as the room in question was no longer in the state it had been in at the material time. Furthermore, photographs of the premises could be seen in a file prepared by the police, and it was for the court to analyse the inconsistencies between Mrs K’s and the applicant’s differing statements. For the latter reason it also refused to put further questions to Mr H. Lastly, it dismissed the applicant’s request for Mrs K to be called again to give further evidence as she had refused to give evidence at the trial and there was no indication that she would change her mind. On 19 November 2002 the Regional Court, sitting in a formation of two professional judges and two lay judges, convicted the applicant of attempted rape with violence. It relied partly on Mrs K’s statements to the police and the investigating judge. It noted that Mrs K had been under the influence of alcohol to a considerable degree at the time of the events. The court accepted the applicant’s argument that Mrs K had accompanied him to his room voluntarily. It found, however, that despite Mrs K’s inability to recall the events immediately before and after the attempted rape, her allegations of assault were credible. It noted in this regard that they were consistent with the other evidence obtained in the proceedings, namely the injuries to Mrs K witnessed by the police officers. The court did not believe the applicant’s account that he had invited Mrs K for drinks all afternoon and then to his room out of sympathy for her. It further noted that the applicant could not give any convincing reason for the fact that strands of Mrs K’s hair had been spotted by a police officer on his clothes. Furthermore, it did not believe the applicant’s assertions that Mrs K had injured herself in a fall on the way from the pub to his flat or that she had not suffered any other injuries, in particular the wound to her hand. Having regard to Mrs K’s injuries and to the applicant’s criminal record of eleven previous convictions, it sentenced the applicant to three years’ imprisonment. Referring to a psychiatric expert opinion, it further ordered that he be detained in an institution for mentally ill offenders. The applicant filed a plea of nullity with the Supreme Court ( Oberster Gerichtshof ) in which he complained inter alia about the dismissal of his requests for further evidence to be taken. He submitted in particular that the photographs to which the Regional Court had referred did not show the room as it was at the time of the events. He argued that in view of the various inconsistencies in Mrs K’s description of the events, the Regional Court should have visited the scene in order to stage a reconstruction. He further argued that the proceedings had been conducted contrary to the direct evidence rule ( Unmittelbarkeit ) in that the trial court had not seen the video recording of the hearing at which the depositions were taken. In view of this and of new evidence that had come to light at the trial, namely the statement by Mrs P that Mrs K frequently made up stories as she feared being beaten up by her partner, the trial court should have recalled Mrs K or, at least, allowed further questions to be put to Mr H. In the applicant’s submission, the proceedings had therefore violated his right under Article 6 of the Convention to conduct his defence effectively. On 20 February 2003 the Supreme Court rejected the applicant’s plea of nullity. It noted that no inspection of the scene was necessary as the applicant’s intention was to prove that Mrs K’s allegations concerning the way to his room and her behaviour after the attempted rape were not true; however, these facts had not been relevant to the court’s decision. As regards his request to call Mrs K again, the applicant had not submitted any reasons why Mrs K would be prepared to give evidence after refusing to do so at the trial on 1 July 2002. The Supreme Court also found that the applicant’s request to hear further evidence from Mr H had not been sufficiently substantiated as it was conditional. In any event, the Regional Court had not relied on Mr H’s expert opinion in its judgment. The Supreme Court noted, lastly, that the Regional Court had dealt with the inconsistencies between Mrs K’s statements to the police and to the investigating judge and between her statements and Mrs P’s statement in the context of its assessment of evidence, an assessment that appeared logical. On 9 April 2003 the Graz Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal, but granted the Public Prosecutor’s cross-appeal and increased the sentence to four years’ imprisonment. That decision was served on the applicant’s counsel on 9 May 2003.

On 22 November 2006 the applicant brought a liability action ( ação de responsabilidade civil ) in the Braga Court against F., a lawyer who had acted as her legal representative in previous proceedings, claiming damages for professional negligence. On 12 December 2006 F. was notified of the action. On 25 January 2007 he lodged his submissions in reply ( contestação ) and requested the intervention of his insurance company to which he had transferred his responsibility for the acts committed by him in his capacity as lawyer. On 8 March 2007 the applicant lodged new submissions in reply ( réplica ). By a Braga Court’s decision of 11 July 2007 the intervention of the insurance company in the proceedings was accepted. The company was summoned on an unknown date. On 14 September 2007 it lodged its submissions, to which the applicant replied on 11 October 2007. Between January and April 2008 the parties disputed the applicant’s legal capacity to be a party to the proceedings ( capacidade judiciária ). On 28 April 2008 the judge gave directions ( despacho saneador ) absolving F. of the proceedings ( absolvição do réu da instância ) on the grounds of the applicant’s lack of legal capacity. On an unknown date the applicant appealed against that decision to the Guimarães Court of Appeal ( Tribunal da Relação ). By a decision of 4 December 2008 the Court of Appeal considered that the applicant had legal capacity and ordered the re-analysis of the case at first instance. In February 2009, the proceedings were allocated to the Braga Court. On 29 April 2009 the judge gave directions setting out the matters that had already been established and those that remained outstanding. Between 28 May and 6 November 2009 the parties lodged, in total, three requests to which the judge promptly replied in less than one month. On an unknown date the case was set down for hearing on 10 March 2010. The hearing was later adjourned to 15 June 2010. A second hearing took place on 7 October 2010. On 29 October 2010 the Braga Court partially found in favour of the applicant. The parties appealed against the decision to the Guimarães Court of Appeal, which dismissed the appeals on 20 October 2011. The parties challenged the Court of Appeal’s decision before the Supreme Court. On 29 May 2012 the Supreme Court dismissed the appeals.

Slovenia, Portugal

A. Background to the case The applicant is a man who is intellectually disabled. On 14 February 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’s home town, which is in the South of <COUNTRY>. In June 2006 the foster family, the applicant and one of his brothers moved to a village in the North of <COUNTRY>. 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. 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’s home in his home town in southern <COUNTRY>. 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, förvaltningsdomstolen ) on 18 February 2008 and subsequently by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen ) on 10 December 2008. On 31 July 2007 the applicant was placed in a children’s home in his home town in southern <COUNTRY>. One of his brothers was placed in the same home in the autumn of 2007. On 23 July 2008 the applicant turned 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. On 30 December 2008 the social welfare authorities requested the District Court ( käräjäoikeus, tingsrätten ) 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’s 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’s 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. On 25 January 2009 the former foster parents took the applicant to the North of <COUNTRY>, 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. 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’s level of development and on submissions according to which the applicant was gullible and keen on small children’s play. The appointed mentor was an official of the local public legal aid office entrusted with functions of this kind. On 7 February 2011, after having received a psychologist’s report dated 26 November 2010 on the applicant, the appointed mentor decided, against the applicant’s 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 <COUNTRY>, 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 <COUNTRY>. B. Impugned proceedings 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. On 22 June 2011 the District Court, having heard the applicant in person, as well as witnesses including the applicant’s 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’s 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’s interests. 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 26 November 2010 and established by a psychologist, the applicant’s 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’s 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’s 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’s 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’ 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. 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’s place of residence in accordance with the applicant’s own wishes. Under such circumstances the mentor was required to take the decision on the basis of an assessment of the applicant’s best interests. 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’s 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’s place of residence and his education. On 15 July 2011 the applicant lodged an appeal with the Turku Court of Appeal ( hovioikeus, hovrätten ). 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. On 9 May 2012 the Turku Court of Appeal, after holding an oral hearing, rejected the applicant’s appeal and upheld the District Court’s 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’s home in Southern <COUNTRY>, no specific reasons had been given as to why this measure had been in the applicant’s 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’s trust should be chosen. By a letter dated 6 July 2012 the applicant lodged an appeal with the Supreme Court ( korkein oikeus, högsta domstolen ), reiterating the grounds of appeal already submitted before the Appeal Court. On 8 February 2013 the Supreme Court refused the applicant leave to appeal. The applicant’s current situation According to the information provided by the Government, in July 2013 the applicant learned that his foster father had died and he attended his funeral in Northern <COUNTRY>. 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. The applicant’s 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 <COUNTRY> 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.

Finland

10

The applicant was a journalist employed by Telewizja Polska Spółka Akcjna (TVP), the Polish public television company. On 1 April 1999 Gazeta Wyborcza , a national newspaper, published an article reporting that two classical music programmes had been taken off the air. The article cited well-known composers, critics and journalists who had expressed their concerns about the lack of support for classical music and about the fact that the quality of public television programmes was being negatively affected as a result of fierce competition from private broadcasters. The article also quoted an opinion which had been expressed by the applicant in an interview in her capacity as the President of the Polish Public Television Journalists’ Union ( Syndykat Dziennikarzy Polskich Telewizji Polskiej). The relevant part of the article read as follows: “... Ms Kaletowa, the President of the Polish Public Television Journalists’ Union said: ‘We have received the decision very badly, especially as the new programme proposals are not concrete. Director K. stated that the changes were not aimed at getting rid of classical music but, on the contrary, at creating new possibilities for it. I take this statement at face value, although no steps have been taken so far which could confirm these good intentions’.” The applicant also signed an open letter addressed by 34 representatives of cultural and artistic circles in Wrocław to the board of TVP. The letter stated that classical music was a common value and a pillar of national identity and that the lack of a stable and coherent policy with respect to the broadcasting of classical music constituted a threat to culture and to the amateur music movement. By way of example, the authors mentioned two music programmes which had been discontinued and replaced by “pseudo-musical kitsch”. The open letter read, inter alia : “Everybody involved in music is deeply concerned by the marginalisation of culture and music in our country and, in particular, in our region. Music is the heritage of the nation. It is also the universal language of art, spoken by citizens throughout the world. Music constitutes one of the pillars of our national identity and we must preserve and disseminate both the work of previous centuries and of modern times. Chopin, Szymanowski, Górecki, Lutosławski, Kilar or Penderecki are composers of whom we are proud. ... All these achievements are seriously jeopardised. There is a lack of money and no stable and coherent policy of protection and no systematic co-operation with the media. As regards regional television, despite the principles governing the public TV’s mission, concerts, magazines, cultural and music programmes, such as ‘MAK’, ‘TUBA’, ‘Meeting Classical Music’ are disappearing and air time is being polluted by violence and pseudo-musical kitsch. The NSZZ Solidarność Trade Union and the representatives of cultural and artistic circles ... protest against these measures.” On 15 April 1999 the applicant was reprimanded in writing by her employer for failing to observe the company’s general regulation no. 14 § 2, which required her to protect her employer’s good name (see paragraph 18 below). The applicant argued in her appeal of 20 April 1999 to the Regional Director of TVP that when commenting on the employer’s decision she had been acting in her capacity as the president of a trade union. The employer stated in reply that the comments in question did not refer to matters which could fall within the trade union’s scrutiny. In addition, the open letter which the applicant had signed contained untrue and tendentiously presented information that was harmful to the company’s good name. The reprimand was to be kept in her records for a period of up to one year, depending on the applicant’s behaviour. The applicant unsuccessfully objected to the reprimand. She argued that as a member of the trade union she had a right to criticise measures impairing the rights of employees. On 13 May 1999 the applicant lodged a claim against TVP with the Wrocław District Court, requesting that the reprimand be withdrawn. She alleged that the reprimand had been an act of revenge by her employer for her trade-union activity and disagreed with the assessment made of her behaviour. By a judgment of 9 January 2001 the Wrocław District Court dismissed her claim. The court agreed with the employer’s arguments that the issue of changes in television programming was not a matter on which the trade union could comment and that the applicant had failed to observe the obligation of loyalty imposed on her as an employee. The court found that the applicant was guilty of having behaved in an unlawful manner and that this was a necessary and sufficient prerequisite for the disciplinary measure imposed on her. The applicant appealed, pleading a violation of the applicable provisions of the Trade Unions Act, read in conjunction with Article 54 of the Polish Constitution guaranteeing freedom of expression. She submitted, inter alia: “The lower court has breached [ inter alia ] Article 54 of the Constitution in that it accepted that the applicant, as the President of the Polish Public Television Journalists’ Trade Union, was not entitled to make comments to the press and to sign the open letter concerning the situation in its regional branch, despite the fact that she was acting in the employees’ interest, in compliance with her legal obligations and without harming the employer’s good name. [The letter] had a close connection with the programming changes which were to the detriment of the musical culture in Lower Silesia, but, first and foremost, also infringed the material and moral interests of the employees who could lose their jobs and broadcasting time.” On 10 April 2001 the Wroclaw Regional Court upheld the contested judgment. It stated that the applicant’s comments had not been aimed at the protection of employees’ rights in connection with her function in the trade union but had taken the form of an assessment of the changes in programming policy. It concluded that the applicant had acted to the detriment of the employer and had thus breached her obligation of loyalty. Consequently, the employer had been entitled to impose the reprimand on her.

He is the proprietor, editor-in-chief and journalist of a local weekly Komu i Czemu , published in the Radomsko and Bełchatów Districts. At the end of May 2005 Dz., a local businessman providing services to a district hospital, visited , the district mayor ( starosta ), to complain about K., the director of the hospital. It appears that the hospital owed some money to the businessman. Dz. recorded the conversation and the following day passed it on to the applicant. On 2 June 2005 the applicant wrote to the district mayor and asked him to explain why he had delayed informing the prosecution authorities about the alleged corruption at the district hospital. In reaction to the letter, the district mayor summoned K. to respond to those allegations. He also sent a copy of the applicant’s letter to the prosecution service asking for the matter to be examined. In his letter to the prosecution service, the district mayor stated that the applicant’s allegations were insinuations aimed at undermining the public trust in him. A copy of this letter was sent to the applicant. On 6 June 2005 Dz. notified a local member of parliament (“MP”) that the director of the hospital had received bribes from Dz. He stated that his recent conversation with the district mayor indicated that the latter had some knowledge about the bribe-taking. On 14 June 2005 the MP relayed this information to the Minister of Internal Affairs and Administration. Subsequently, the information was transmitted to the Ministry of Justice and then, in turn, to the Piotrków Trybunalski Regional Prosecutor’s Office. In the article “K. took bribes” published in issue no. 23 (8-14 June 2005), the applicant stated that “the hospital director was being protected by the district mayor who knew that the subordinate director had taken bribes”. In the article “Corruption of Madame Director” published in issue no. 24 (15-21 June 2005) the applicant wrote that the district mayor had known that K. was corrupt but had not notified the prosecution authorities. The same allegation was made in the article published in issue no. 25 (22 ‑ 28 June 2005). In the article “Young prosecutor examines Deszcz [the district mayor]” published in issue no. 28 the applicant stated that “the district mayor is obviously fibbing, because he received information that the director took [bribes] from at least two sources”. On an unspecified date in 2005 the district mayor lodged a private bill of indictment against the applicant with the Piotrków Trybunalski District Court. He accused the applicant of defamation committed through the mass media under Article 212 § 2 of the Criminal Code. The bill of indictment related to two separate charges. The first concerned an article entitled “Hey those district roads” published in issue no. 1 of 2005 in which the applicant had discussed mismanagement of road works in the district. The second charge concerned four articles published by the weekly in June and July 2005 in which the applicant alleged that the district mayor had known that K. was corrupt but had failed to inform the prosecution service. The district mayor claimed that the impugned articles lowered his standing in the eyes of the public and undermined the public confidence necessary for the discharge of his duties. On 8 February 2006 the Piotrków Trybunalski District Court gave judgment. It acquitted the applicant of the first charge and convicted him of defamation committed through the mass media in respect of the second charge. The District Court held that the applicant had wrongly alleged in his articles that the district mayor had known that K. accepted bribes but had not informed the police about it, despite having been under a duty to do so. Thus, the applicant had lowered K.’s public standing and undermined the public confidence necessary for the discharge of his duties. The District Court sentenced the applicant to a fine of 10,000 Polish zlotys (PLN; 2,600 euros (EUR)). It further ordered him to pay the private prosecutor’s costs (PLN 300; EUR 80) and the costs of the State Treasury (PLN 1,000; EUR 260). When examining the first charge against the applicant, the trial court observed that the contours of the offence of defamation specified in Article 212 of the Criminal Code were delimited on one hand by the protection of reputation and dignity of a person and, on the other, by so ‑ called legitimate criticism ( dozwolona krytyka ) which derived from Article 54 of the Constitution. It noted that in accordance with the Strasbourg case-law political or public activity inevitably resulted in subjecting officials to the judgment of the public opinion. Persons holding important offices were thus required to show a higher degree of tolerance to criticism. In respect of the second charge, the trial court heard evidence from the applicant, the district mayor, Dz., K. and G.(spokesperson of the district mayor). It further heard the recording of the conversation between the district mayor and Dz. The District Court observed that the applicant and the district mayor had once been good colleagues; however their relations had deteriorated since ’s election as district mayor in 2002. From then onwards the applicant’s newspaper had begun publishing articles virulently criticising the district mayor and his staff. The court established that the local businessman Dz., who provided services to the local hospital and was dissatisfied with his cooperation with the hospital director (K.), had informed the district mayor that K. had been taking bribes. Dz. had recorded his conversation with the district mayor. Subsequently, he had provided the applicant with the content of the recording and informed him that he had given bribes to K. The court found that the applicant had alleged in a series of articles published between 15 June and 19 July 2005 that the district mayor had covered up the corruption affair, without having verified the information received from Dz. and disregarding the actual content of the recording. The court further established that the applicant, when publishing a series of articles about the alleged corruption affair, had relied exclusively on the recorded conversation between the district mayor and Dz. It noted that neither the recording nor the statements of Dz. had confirmed the allegation that the district mayor had known about bribe-taking in the hospital, and thus the applicant’s assertions had been untrue. Even if the district mayor had some misgivings about the management of the hospital it could not be inferred from that that he had specific knowledge about the corruption. The trial court noted that allegations of covering-up corruption were of immense gravity and that the applicant had published them without having them verified. It underlined that shortly after having received the applicant’s letter of 2 June 2005 the district mayor referred the matter of corruption allegations to the prosecution service. In the court’s view, the applicant had flagrantly breached the journalistic principles of diligence and objectivity. The court further noted that in none of the impugned articles had the applicant referred to the uncertain nature of the presented information. The applicant, as an experienced journalist, should have been particularly cautious with the information received from the disgruntled businessman as he had been aware of a sharp conflict between him and the hospital management. However, he had failed to display particular diligence and had exploited that information for sensational purposes in making the district mayor and his alleged cover-up of the corruption the central part of his articles. The trial court referred to section 12 of the Press Act which obliged journalists to display particular diligence in gathering and using the information, and, in particular, to verify the truthfulness of obtained information. The District Court held, inter alia , as follows: “There is no doubt that by imparting information clearly presupposing that [the district mayor] had allegedly covered up the corruption affair [the applicant] not only did not demonstrate the requisite diligence but in general did not take the trouble to confirm and verify in any way the information he had received. Without having regard to the gravity of the allegations made against , the applicant hastily used the words of his informant for the purposes of settling his scores with ... The articles discrediting did not serve anything but the personal satisfaction of [the applicant], and the concern for the respect of law in the local hospital appeared to be of marginal importance. Having read the series of the above-mentioned articles it is difficult to escape the conclusion that the attention of the applicant was focused on damaging the reputation of the district mayor, while the hospital director K. was put on the sidelines. ... Besides, these actions constitute not the only but certainly the most far-reaching element of the personal war with waged in the weekly Komu i czemu . Defamation committed with the knowledge that information and opinions concerning the behaviour or characteristics of another person are false never serve to defend a justifiable public interest. Such actions do not benefit from the protection granted to freedom of expression and the right to criticise under Article 31 § 3 of the Constitution or Article 10 § 2 of the Convention. The real effect of the applicant’s publication cannot be assessed in isolation from the public office held by It is obvious that the office of the district mayor must be based on public trust and respect. Imparting by means of mass communication information about the alleged participation of the district mayor in the cover-up of a corruption scandal does not enhance his popularity. It risks not only the loss of the office, but also lowers his public standing creating an atmosphere of scandal and suspicion. ... By attributing to behaviour constituting an offence and doing so by means of mass communication, Ziembiński made out all the statutory features of the offence specified in Article 212 § 2 of the Criminal Code.” The trial court noted that the applicant published four separate articles containing defamatory statements in respect of the district mayor within the period of a few weeks. Those statements fell outside the limits of permissible criticism referred to in Article 213 § 2 of the Criminal Code since they had been untrue. The trial court considered that the degree of the applicant’s guilt was significant and for that reason the proceedings could not have been conditionally discontinued. As regards the sentence, the court found that, having regard to the circumstances of the case, a fine would be the most appropriate penalty. It imposed a fine of PLN 10,000, which it considered proportionate to the gravity of the offence, the degree of the applicant’s guilt and his financial standing which was beyond average. With regard to the latter, it had regard to the profits from the ownership of one of the most widely read newspapers in the region. As regards other relevant factors, the court noted that the applicant had deliberately infringed the district mayor’s reputation and had been motivated by personal animosity. At variance with the professional and deontological standards, he failed to respect the requirement of particular diligence when using information at his disposal. The trial court took further into account that the applicant had not in any way recognised that he had acted inappropriately. The applicant appealed. He contested the factual findings of the first-instance court, in particular that the recorded conversation between Dz. and the district mayor had constituted the only source of information about the bribe-taking. He further alleged that the first-instance court had erroneously assessed the evidence. On 23 May 2006 the Piotrków Trybunalski Regional Court upheld the first-instance judgment and found the applicant’s appeal manifestly ill ‑ founded. It ordered him to pay costs of PLN 1,000 for the appeal proceedings. The Regional Court endorsed the lower court’s findings. It noted that Dz. had been in conflict with the director of the hospital which was related to unpaid invoices of his company. In the past he had frequently complained to the district mayor about the director of the hospital. The Regional Court held that the recorded conversation and information passed orally by Dz. to the applicant had constituted the only basis of the allegations made against the district mayor. According to the court, there was not a single statement of the district mayor in that conversation indicating that he had been aware of the alleged corruption of the director of the hospital. The allegations made by the applicant had been based on isolated parts of the conversation which were taken out of context. The Regional Court also noted that the applicant had not sought comments from K. At the time of the publication the applicant had not disposed of any information corroborating the alleged cover-up of the corruption. Nor had such information been disclosed during the trial. The Regional Court, having regard to the evidence heard by the trial court, found that the district mayor had learnt about the alleged corruption in the local hospital from his conversation with Dz. at the end of May 2005 and then from the applicant’s letter of 2 June 2005. It accordingly confirmed that the allegations raised by the applicant in his articles had proved to be untrue. Referring to the case-law of the Strasbourg Court, it recalled that the limits of acceptable criticism were wider with regard to politicians than with regard to private individuals. However, it did not follow from that that the insulting of a politician could go unpunished. The judgment was served on the applicant on 13 June 2006.

He originates from Baghdad. The applicant arrived in <COUNTRY> on 12 December 2007 and applied for asylum the following day. In support of his application, he submitted in essence the following. He is a Christian academic who was employed at a university in Baghdad. In April 2006 he had begun working for a committee which had been established to develop research methods at the university. The committee had soon been accused of cooperating with Americans. On 20 June 2006 the applicant had written a letter to the Minister of Education, accusing a university colleague of corruption and of counteracting the work of the committee. The colleague, a member of the Iraqi Islamic Party (IIP), had found out about the accusations and had threatened the applicant, saying that bad things would happen to him. On 27 June 2006 armed men had attempted to kidnap the applicant’s daughter. Her mother had called the police and, after some shooting, the daughter had been released. On 30 June 2006 the applicant had received a letter, in which he and his family had been called Christian traitors and it had been stated that they would be killed if the applicant did not quit his job. On 8 July 2006 the applicant had reported the incidents to the police and the family had moved in with relatives. Thereafter, the applicant had found out that the head of the committee had been kidnapped and killed on 16 July 2006 and that he, as well as the other committee members, had previously received threatening letters saying that he deserved to die. The work of the committee had consequently ended and on 3 October 2006 the applicant had fled with his family to Syria. On 15 January 2008 the applicant’s parents, who lived in Baghdad, had been shot at and the father had been kidnapped and tortured until he had told the kidnappers the whereabouts of the applicant. In October and December 2008, the applicant had received threatening messages on a website. In one of the messages, the Islamic Brigade, a militia within the IIP, had warned him about returning to <COUNTRY>. On 17 March 2009 the Migration Board ( Migrationsverket ) rejected the application. The Board did not question that the applicant was a Christian and had worked for the university committee, but did not find it likely that his work had made him a suspect of cooperating with Americans. Furthermore, as he had quit his job three years earlier, there was nothing to indicate a remaining work-related threat. Also, the applicant had failed to make plausible that his accusation against a former colleague had harmed that person or the IIP and it was thus unlikely that the applicant would be conceived of as a threat by that person. The Board further could not see any reasonable explanation for the alleged attack against the applicant’s parents, thereby questioning the credibility of this allegation. Finally, the Board noted that the security situation in Baghdad and in <COUNTRY> as a whole had improved. The applicant appealed, claiming a risk of persecution on the grounds that he is a Christian and an academic, and adding that members of the IIP had asked for him and had written threatening messages on the wall of his old house in December 2009. He also stated that he had reported to the police that he suspected high profile members of the Ministry of Education of being responsible for the kidnapping attempt of his daughter. On 9 June 2010 the Migration Court ( Migrationsdomstolen ) upheld the decision of the Board. The court held that the incidents referred to by the applicant did not constitute persecution on religious grounds. Further, it found the applicant to have had exaggerated his story by adding that he had reported to the police his suspicions concerning the perpetrators of the kidnapping attempt of his daughter. The court also pointed out that the applicant’s work for the university committee was of a limited scope and that a long time had passed since it had ended. In the absence of any political activity on the part of the applicant, it was not likely that his letter to the Ministry of Education would cause a threat of such scope as alleged by him. In sum, there was no individual threat against the applicant. On 3 November 2010 the Migration Court of Appeal ( Migrations-överdomstolen ) refused the applicant leave to appeal. Subsequently, the applicant claimed that there were impediments to the enforcement of his deportation order. He mainly invoked the general situation for Christians in Baghdad and attacks that had allegedly occurred in November 2010 in the residential area where he had used to live. On 26 January 2011 the Migration Board decided not to reconsider the case, finding that no new circumstances justifying a reconsideration had been presented.

Sweden, Iraq

In the period between 23 and 27 January 2005 the applicant, in a series of telephone conversations with S., agreed that he would supply her with cannabis which she would then sell. These telephone conversations were recorded by the Federal Security Service (“FSB”). On 28 January 2005 S. brought the cannabis to the applicant. She mixed it with cannabis she already had at home and packed it into three separate plastic bags, then wrapped them together in one parcel. On the same day the acting chief of the Kursk Regional Department of the FSB authorised an undercover operation in the form of a test purchase under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). On the following day an undercover FSB agent, B., acting as a buyer, met the applicant and purchased 4,408 g of cannabis from her. Banknotes marked with a special substance were used for the purchase. The FSB also made a video and audio recording of the test purchase. After the transaction the applicant was arrested and the marked money was found on her. Her home was searched afterwards, and there she handed in another bag of cannabis weighing 6 g. On 24 November 2005 the Leninskiy District Court of Kursk examined the case. The applicant pleaded guilty of having assisted B. in the acquisition of cannabis, but claimed that she had been induced by B. to commit the offence and that she would not have committed it without his intervention. The applicant submitted at the trial that she had a close relationship with S. On one occasion in September 2004 he had left a bag containing dry herb at her home. She had then shown the substance to a neighbour who she knew was a drug addict and he had recognised it as cannabis. A few days later she had been approached by a certain Vladimir, previously unknown to her, who had said that he knew that she had “stuff” and that he could arrange a large-scale deal (“200 cups”) with a customer he knew. She had mentioned this offer to S., who had told her that he could pick up the requisite amount and asked her to find out the price. According to the applicant, at some stage Vladimir had started calling her, harassing her into selling cannabis and making threats should she refuse to do so. She had called S. several times before 28 January 2005, when he had finally brought the cannabis to her. On 29 January 2005 she had received a phone call from the “customer” (the undercover agent B.) and they had arranged for the sale. S. testified at the trial that the applicant had called him in October or November 2004 and suggested a deal whereby he would supply her with a “large consignment” of cannabis which she would then sell. In November 2004 he had picked up some wild marijuana plants and dried them in his attic. On 23 or 24 January 2005 the applicant had called him, asking whether he had prepared the consignment, and said that she had customers waiting. They had decided to sell the cannabis at 300 roubles per cup; according to S., the price was suggested by the applicant. S. also testified that the applicant had told him that she had received threats pressuring her into selling the cannabis. Other evidence examined by the court included: – witness testimonies by B., the undercover agent, and K., the FSB agent who took part in the test purchase, on the events of 29 January 2005: the details of the test purchase, the applicant’s arrest and the ensuing investigative measures; – witness testimonies by Kr. and Kh., the attesting witnesses, concerning the applicant’s arrest on 29 January 2005 and the inspection of the marking agent found on her hands and banknotes; – the FSB reports relating to the test purchase, the search and the objects seized; – forensic evidence and reports on the inspection of the seized substance; these confirmed that the bag contained 4,408 g of cannabis, an amount corresponding to 2,204 average doses of cannabis; the substance seized at the applicant’s home was 8 g of cannabis; – the transcripts and the related reports on the telephone conversations between the applicant and S. in which they had discussed the details of the planned sale; – witness testimonies by the applicant’s mother that the applicant had received threats pressuring her into selling drugs and that she had continued to receive calls and threats after her arrest; and – witness testimonies by the police officers who had received a complaint from the applicant’s mother concerning the harassment by telephone. On the basis of the above evidence, the court found the applicant guilty of having sold cannabis to B. on 29 January 2005. As regards the alleged incitement, the court considered that S.’s testimonies concerning the threats received by the applicant were an attempt to help her and decided that there was insufficient evidence of any threats or pressure on the applicant to sell drugs. The court convicted the applicant on a conspiracy charge involving plans to sell a particularly large consignment of narcotic drugs under Article 228.1 § 3 ( статья 228.1 ч 3 «г» ) of the Criminal Code and sentenced her to four years’ imprisonment. The court relied on the applicant’s partial confession, oral testimonies by the FSB officers who had conducted the test purchase and by attesting witnesses, forensic evidence and reports on the inspection of the seized substance. Her accomplice S. was also convicted of the same offence. The applicant appealed, relying, inter alia , on the decisive role of the incitement in her committing the crime and on her inability to access the evidence from the investigation. She alleged, in particular, that there existed recordings of her telephone conversations with the FSB agents prior to the test purchase and asked for T., the FSB agent supposedly involved in the telephone tapping, to be called as a witness. She also complained that the court had not examined the video and audio recording of the test purchase. On 24 January 2006 the Kursk Regional Court dismissed the applicant’s appeal. The court rejected the applicant’s argument concerning the incitement by State agents on the grounds that her participation in the drug sale on 29 January 2005 had been established on the basis of multiple items of evidence and was not denied by her. The appeal court upheld the first­instance judgment, holding, in particular: “As regards the arguments [contained in the applicant’s appeal] concerning the unfounded dismissal of [her] request to obtain the audio recordings of the telephone conversations between [her] and the FSB agents, and to cross-examine the FSB agent [T.] on that point, the case file contains no proof that any such recordings have been made under a procedure established by law. As regards the arguments [contained in the applicant’s appeal] concerning the unfounded dismissal of [her] request to obtain the video and audio recordings of the test purchase of the drugs by the FSB agents, it is not necessary to examine them since [the applicant] accepted in her pleadings that she had sold the drugs during such a test purchase, and her account of the circumstances is corroborated by other evidence and facts established by the court. In particular, it follows from the transcripts of the [applicant’s] telephone conversations with [S.] that during these conversations they discussed occasions of previous sales of narcotic drugs, the remaining unsold stock of narcotic drugs, the emergence of new customers and the prospects of carrying out another sale together ... S. was conveying information on prices for narcotic drugs”.

Bátěk and Elsner) and Břeclav (Mr Blažej). From September 2003 to January 2004 the applicants were employed by the Lanžhot Customs Office on the border with the Slovak Republic. On 1 December 2003, pursuant to Article 158e of the Code of Criminal Procedure (“the CCP”) an undercover police agent infiltrated the team of customs officers. As a result of her observations over the following two months, the customs officers were suspected of corruption, namely taking bribes from truck drivers in exchange for granting priority or trouble-free customs clearance. The undercover agent left the Customs Office on 6 February 2004. During March and April 2004 testimony was taken in the presence of a judge from twenty truck drivers from different countries in accordance with the provisions of Article 158a of the CCP, that is to say this step was taken as an urgent or non-repeatable measure ( neodkladný nebo neopakovatelný úkon ). The records show that the drivers’ testimonies were similar. According to the applicants, interviews with four of the drivers were of decisive significance. Three of them were of Romanian nationality and one of them was a Bulgarian citizen. The applicants, being not yet charged, were not present at these interviews. Witness P.testified that it was common practice for the customs officers to ask drivers for documents and to check whether there was some money enclosed. If not, the drivers had to wait for hours to be cleared. He admitted that he had paid bribes on two or three occasions but he could not remember individual customs officers. Witness testified that he had always had to pay 5 euros (EUR) in order to avoid inconvenience during customs clearance. He described one customs officer as a corpulent person with thinning brown hair. He did not remember any other officer. Witness S.B. testified that he had paid 5 EUR on each of the ten trips he had made to pass the customs control. He was not able to describe any of the customs officers. Witness A.A.U. confirmed the existence of corrupt practices at the customs office in question but could not specify any particular person. On 22 April 2004 the applicants were charged, together with fifteen other individuals, with abuse of the authority of public official and accepting bribes. In February 2005 they were officially indicted. On 14 December 2005 the Břeclav District Court ( okresní soud ) heard the police agent as an anonymous witness ( utajený svědek ) under the provisions of Article 55 § 2 and Article 209 of the CCP. She gave her testimony outside the courtroom using an audio streaming device. She did not recount any specific case of the acceptance of a bribe, stating only that her reports and the information therein were fully reliable. The third applicant was present at the hearing. He was represented by a defence counsel. The other two applicants were absent and were represented by a substitute defence counsel. Only the third applicant put a question to the anonymous witness. In the course of the trial, the applicants argued that the agent would have been unable to see any other customs officers from her work-station, that none of the alleged acts had been filmed by the cameras installed at their workplace, and that the officers’ numbered rubber stamps could have been used by other people. 11 . On 25 May 2006 the District Court found the applicants and other accused persons guilty as charged. They were sentenced to one year’s imprisonment suspended for two years’ probation and were fined. The court established the factual background to the body of evidence. The agent’s written report constituted directly incriminating evidence. The court further relied on customs documents stamped using the personal rubber stamps of specific customs officers, comparing these with the testimony of the truck drivers, the records of service rotations and the database linking the applicants to the times at which the interviewed truck drivers obtained their customs clearance. The District Court stated: “As regards the defendant Roman Bátěk, he is incriminated by the relevant documentary evidence referring to counts 2 and 3 of the indictment and counts 4 and 5 of the indictment, from which it is apparent that he used a rubber stamp with the number 005 and that his personal number was 20627, these numbers appearing on the relevant documents. When it comes to counts 2 and 3 of the indictment, he is also incriminated by the witness statements of the Bulgarian driver [] and the Romanian driver [] who, according to their records, passed the border crossing point at the time in question, and their papers and travel documents bear the respective numbers of the defendant Bátěk. The above fully corresponds to the report from the defendant’s employer regarding the placement of the defendant, e. where ‒ that is to say at which work-station ‒ he was positioned at the time concerned. As to counts 4 and 5 of the indictment, the defendant Bátěk is also incriminated by a police officer of the Czech Republic who saw the defendant accepting a bribe and recorded this fact in the corresponding document, produced in evidence, which also corresponds with the testimony of the undercover agent given before the court. As regards the defendant Radek Blažej, he is incriminated by the documentary evidence produced as regards counts 6 and 7 of the indictment, specifically the control sheets showing his personal number 16898 and rubber stamp number 090. He is also incriminated by the testimony of the Romanian driver [] and by a report from his former employer stating the defendant’s whereabouts at the time concerned. As to count 7 of the indictment, the defendant Radek Blažej is also incriminated by the undercover police agent of the Czech Republic who saw the defendant accepting a bribe. As regards the defendant Karel Elsner, he is incriminated on counts 8, 9 and 10 of the indictment by the documentary evidence produced, especially by control sheets which were stamped with his personal number and also by other use made of his personal number, as is apparent in the corresponding computer records. He is also incriminated by the witness statement of [S.], who submitted details of his border crossing to the authorities and notes of bribes given at a specific time and place. As to count 9 of the indictment in relation to the defendant Karel Elsner, the witness stated that on 10 November 2003 he gave a bribe at a particular time and ‒ by checking the driver and the documentation relating to his border crossing ‒ it was established who had cleared him and who had stamped his documents, from which it is clearly apparent that it was the defendant Elsner who carried out the administrative measures concerned and hence received the bribe. As to count 10 of the indictment, Karel Elsner is also mentioned in the anonymous agent’s report.” The District Court explained that the truck drivers’ statements were read out at the hearing pursuant to Article 211 § 2 b) of the CCP. The drivers had been interviewed in the presence of a judge during the pre-trial stage of the proceedings, because it had been deemed necessary to take the step of obtaining their testimonies as an urgent or non-repeatable measure since they were foreign nationals and it would have been almost impossible for the court to reach them at a later stage. The undercover police agent was heard as an anonymous witness pursuant to Article 209 of the CCP because of her potential future activities. 13 . The applicants appealed against the judgment. They firstly argued that the truck drivers could have been questioned under the corresponding international treaties ‒ namely the European Convention on Mutual Assistance in Criminal Matters and bilateral treaties on mutual judicial assistance with <COUNTRY> (treaty of 25 October 1958) and <COUNTRY> (treaty of 25 November 1976) ‒ and that they could have been granted immunity in exchange for testifying. They also contested the legal grounds and the necessity for the non-disclosure of the identity of the undercover police agent. According to them, she did not risk bodily harm or any other danger of interference with her fundamental rights as required by Article 55 § 2 of the CCP. The argument about her future activities was not sufficient justification. Moreover, the delays between the questions asked at trial and her replies implied that she had had with her some notes or someone whom she had consulted about her answers before replying. 14 . On 22 March 2007 the Brno Regional Court ( krajský soud ) rejected the applicants’ appeal as unsubstantiated, arguing as follows: “(...) the hearing of an undercover police agent as a witness is in practice exceptional, occurring only in the particular circumstances of a specific case and in the interests of proper clarification and vindication of particularly serious criminal actions and the conviction of the perpetrators thereof. In such circumstances, and when such an agent is heard as a witness, Article 55 § 2, Article 183a § 4, and Article 209 of the CCP would be applicable. In the instant case, the provisions of the CCP regulating the agent’s testimony were not violated and the allegations of some of the defendants that the agent had been heard as an anonymous witness in order to allow her to consult her notes or another person are unsubstantiated. The first-instance court had no doubts about the agent’s reliability as a witness. She reliably described how she had obtained the information about the criminal activity of the accused and how she had evaluated, recorded and processed it (...) Under Article 160 § 4 of the CCP, a non-repeatable measure is a measure which cannot be repeated before the trial court. Questioning a witness who is a foreign national or stateless person without a permanent residence permit in the Czech Republic can be considered to be this kind of measure. None of the witnesses had a link to the Czech Republic of the kind which could have justified the conclusion that they would remain in the country or appear if summoned. The witnesses merely pass through the territory in the course of their work as truck drivers. The interviews with these witnesses were conducted in accordance with the provisions of the Code of Criminal Procedure. The allegations of the defendants that the witnesses did not even know the content of the records they had signed, and that they had been forced to testify and promised immunity if they stated particular facts, are not substantiated by the case file, and no other facts corroborating these allegations have been ascertained. It is apparent from the file that the truck drivers were questioned in the presence of an interpreter and in the presence of judges of the Břeclav District Court (...). Under Article 158a of the CCP, a judge who performs the urgent or non ‑ repeatable measure of examining a witness or in an identity parade also bears responsibility for the legality thereof." The applicants filed a constitutional appeal alleging a violation of Article 6 §§ 1 and 3 d) of the Convention and complaining about the depositions of the truck drivers and the anonymous witness. On 2 April 2009 the Constitutional Court ( Ústavní soud ) dismissed the constitutional appeal as manifestly ill-founded. It stated that the complaints raised at the previous instances had been properly addressed and that the courts had provided sufficient justification to show that the evidence had been obtained in accordance with the provisions of the CCP.

Bulgaria, Romania

On 22 December 1993 the applicant's wife gave birth to a daughter A. In October 1995 the applicant moved from the City of Murmansk to Uglich in the Yaroslav Region to live with his parents. In May 1996 the applicant's wife, still residing in Murmansk, began living together with another man, S.A., and in September 1996 brought divorce proceedings against the applicant. On 12 November 1996 the competent court dissolved the marriage and awarded custody of their daughter to the mother. On 21 February 1997 the applicant's former wife married S.A. On 14 December 1998 they had a child together. At the end of 1998 or in the beginning of 1999 S.A. instituted proceedings before the Lenin District Court of the City of Murmansk ( Ленинский районный суд г. Мурманска ) seeking adoption of A. The court invited the applicant to join the proceedings as a third party and to submit his views on the matter. In his reply to the adoption request, filed on 8 January 1999, the applicant stated that he was strongly opposed to the adoption. The child already had a father whom she knew. On three occasions he had sent money to support her and telegrams for holidays. Due to the distance of Uglich from Murmansk, as well as financial problems, he could not travel often to Murmansk to visit his daughter. After he had left Murmansk, he had seen her in January 1996. Furthermore, his former wife and mother-in-law had expressed their displeasure at his contacts with his daughter. By a judgment of 9 March 1999 the District Court allowed S.A.'s application. The court observed: “[S.A.] has lodged with the court an adoption request. In the reasons for his request, he stated that the underage child [A.], born on 22 December 1993, is living in Murmansk ... [S.A.] has been married to the child's mother, [O.A.] since 21 February 1997. They have one child from that marriage – a daughter ... who was born on 14 December 1998. The child's father, [the applicant], has not lived with the child since September 1995. He lives in Uglich, in the Yaroslavl region. Since that time he has not participated in the child's upbringing or provided financial support. Since February 1997 the child's upbringing and financial support have been provided by [S.A.]. The child considers him her father, and is not aware of any other father. [S.A.] requested authorisation to adopt the girl, who was to be assigned the first name [A.] and the patronymic [S.], and to be registered as her father. He is aware of the consequences of adoption and the requirements made of an adoptive father. At the court hearing, [S.A] spoke in support of his requests. He asked for authorisation to adopt [the child] without her father's consent, inasmuch as, without good reason, the latter was not providing for her upbringing or financial support. Throughout the entire period in issue, her father had sent a few telegrams with greetings, and in December 1997 he had sent 1,000 roubles, which he borrowed from his wife while travelling to Uglich. [S.A.] considers that adoption would be in the child's interests. [O.A.] supported the adoption request. She explained that [the applicant] has not brought up the child since September 1995, and had left for his parents' home when the child was not yet two years old. He had left her with the child in Murmansk. He had not, and did not, provide financial support. He had sent 1,000 roubles, which he had borrowed when visiting Murmansk in 1996. She had not prevented [the applicant] from meeting the child or being involved in her upbringing. The child knew the applicant as her real father, and a father-child relationship had developed between them. She considers that adoption would be in the child's interest. A third party, the Leninsky Education Department, also supported the [adoption] request. It considers that adoption would be in the child's interest.” The court held: “Having heard the parties and witness statements, examined the written evidence in the case and heard the opinion of the prosecutor, who proposed that the application be granted, the court finds the application to be lawful and deserving of being granted. Under Article 124 of the Family Code, adoption is allowed in respect of minors and only if it is in their best interest, taking account of the possibilities for securing their full physical, mental, spiritual and moral development. Under Article 130 of the Family Code, parental consent for adoption is not required where, for reasons deemed inadequate by the court, the parents have not been living together with the child for more than six months and have failed to take care of and support him or her. In the course of the judicial investigation, it was established that [A.] was born to [O.A.] and [the applicant] on 22 December 1993. At that time the parents were married to each other. In September 1995 [the applicant] decided to move his permanent residence to his parents' home in Uglich, Yaroslavl region. He did not take his wife and child with him. [O.A.] remained alone with the child in Murmansk. In September 1996 she applied to the court for a divorce. On 12 November 1996 the marriage was dissolved. The mother did not apply for maintenance payments for the child. From May 1996 [O.A. and S.A.] lived together as though married. Since that time, [S.A.] has in effect been responsible for the child's upbringing and has also supported her financially. The child calls him father, and considers him to be her father; she does not know her real father. On 21 February 1997 [O.A. and S.A.] married. [They] subsequently changed the child's surname to [A.] so that the entire family would have the same surname. November 1997: [the applicant] did not agree to changing the child's surname; a statement from him to this effect is held in her personal file at the Education Department. [O.A. and S.A.] have a child from their marriage - a daughter ..., who was born on 14 December 1998. The report on the child's living conditions states that the ... family lives in a comfortable three-roomed flat, and that all conditions have been met for the child's upbringing. She has a separate bedroom. She calls [S.A.] father. [S.A.] is described positively, and is healthy and responsible; he has not been deprived of his parental rights. The description of [S.A.] ascribes him positive personal qualities. There are no contra-indications to adoption of the child on the basis of his health. He has not previously been deprived of his parental rights. He is aware of the child's state of health. The salary report makes it clear that the applicant earns 1,700-2,000 roubles per month. From the statements of [O.A. and S.A.] it is clear that the family is financially provided for. The court has not established circumstances that would prevent the child's adoption by [S.A.] under Articles 127 and 128 of the Family Code. In November 1998 the Education Department sent [the applicant] a letter, informing him that the question of his child's adoption was being decided. [The applicant] did not submit a reply to that letter. [The applicant] was invited by the court to join the case as a third party. He was ordered to submit an opinion on the [adoption] request. [The applicant] expressed his disagreement with the child's adoption, on the ground that she had a father. He had provided financial assistance to the child insofar as he was able and had sent telegrams for holidays and festivals. He had seen the child in January 1996. He could not see her more frequently since he lived in Uglich. In the course of the judicial investigation, witnesses who were acquainted with the Chepelev family were questioned. Witnesses [] and [K.] explained that in September 1995 [the applicant] suddenly moved to his parents' home in Uglich. He did not take his wife and child with him. He left her with the child. She was obliged to work in order to support herself and the child. He did not provide financial assistance. Since 1996 [S.A.] in effect supported the child and brought her up. [The applicant] had not been in Murmansk since 1995. The child called [S.A.] father. She and [S.A.] had developed a father-daughter relationship. [The applicant] submitted receipts for money payments: December 1997 - 1,000,000 roubles; December 1998 - 250 roubles; 8 May, unknown year - 2,000 roubles. [O.A.] denies that 2,000 roubles were received. Receipts for the sending of holiday and festive telegrams were also submitted. In addition, in January 1996, [the applicant], having come to Murmansk on business, met the child; [O.A.] does not dispute this. [The applicant] did not participate in any other way in the child's life. [The applicant] was not prevented from communicating with his child. [The applicant's] arguments to the effect that [O.A.] and her mother had prevented him communicating with the child have not been confirmed. [O.A.'s] mother lives outside the Murmansk region. Having analysed the evidence set out above, the court concludes that [the applicant] failed to participate in his daughter's upbringing for more than six months and without good reason. In the court's opinion, 3,250 roubles as maintenance payments for a period of more than three years was insufficient for the child's upkeep. Equally, financial assistance for the child was not in itself enough. It was essential that the child's father communicated with the girl, brought her up, taught her something and took responsibility for her physical, spiritual and moral development. This was the main purpose of the parent's role. [The applicant] has not fulfilled his responsibilities with regard to the child's upbringing. [The applicant's] responsibilities have been assumed by [S.A.]. At present the child does not know her biological father. She considers [S.A.] to be her father. In the court's opinion, even although he lived outside the [Murmansk] region, [the applicant] had an opportunity to contribute to the child's upbringing in some way: he could have taken the child for the summer, or simply to stay with her for a while, or he could have sent various presents, etc. If the child's mother had prevented him communicating with the child, he would have been entitled to protect his parental rights. However, [the applicant] did not attempt to take part in the child's upbringing. In such circumstances, the court is obliged to conclude that [the applicant], without good reason, failed to participate in the child's upbringing for more than six months, and that therefore the adoption may be authorised without his agreement. With regard to the [adoption] request, it is appropriate to grant it, in that adoption of the child would be in her best interest, bearing in mind that [S.A.] is able and willing to secure the girl's upbringing and development in full.” In the operative part of the judgment the court ordered: “- to agree to the adoption by [S.A.] of the underage child [A.], with conferment of the patronymic [S.] and to register the adopter as the father of the adopted child; - to leave the child's surname, first name and date and place of birth without change; - to maintain the mother's judicial relationship with the child. ...” The applicant appealed against the District Court's judgment. The Murmansk Regional Court ( Мурманский областной суд ) dismissed the appeal and upheld the lower court's judgment on 19 May 1999. The Regional Court held: “[The applicant] appealed against the [district court's] judgment, requesting that it be set aside and that the matter be sent for a fresh examination. He referred to the court's violation of the standards of substantive law, and alleged that the court had not believed his arguments and had not taken them into consideration. Having listened to [S.A.], who asked that the [district] court's judgment be left unchanged, the prosecutor's conclusions, proposing that the appeal be dismissed, and having re-examined the evidence in the case and weighed up the appeal arguments, the bench finds the [district] court's judgment to be lawful and well-founded. The [district] court correctly identified the circumstances having legal significance and, on the basis of the established facts, reached the correct conclusion about the parties' mutual relations. In authorising the requests ..., the court correctly applied Article 124 of the Family Code (“children whose adoption is authorised”) and acted in the underage child's best interests. Convincing reasons are cited in the judgment in confirmation of the conclusions that [S.A.] is able to guarantee the child the conditions necessary for her full physical, psychological and spiritual development. The bench considers legally unfounded the appellant's arguments regarding the application to his daughter of the adoption procedure set out in the Family Code, which concerns children who have been left without parental care, as [A.] did not fall into that category of children. The appellant's arguments are based on an incorrect interpretation of the law. In accordance with Article 130 of the Family Code, the [district] court also examined the reasons why the appellant “does not live jointly with the child and has neglected her upbringing and maintenance for more than six months”, and found them to be inadequate. The reasons for the [district] court's conclusions are provided and confirmed by the evidence. The court evaluated the latter in accordance with the requirements of Article 56 of the Code of Civil Procedure. [The applicant] did not submit persuasive evidence to the first-instance court in support of his objections to the request. In addition, the statements made to the appeal court by [] and [the applicant] do not meet the requirements laid down for evidence in civil proceedings. Having failed to find grounds in the appeal arguments that would enable it to set aside the [district] court's judgment, and pursuant to Article 305 of the Code of Civil Procedure, the bench decides: to leave unchanged the judgment of the Leninsky District Court, Murmansk, dated 9 March 1999, and to dismiss the appeal submitted by [the applicant].” On 22 March 2000 a judge of the Supreme Court rejected the applicant's request for leave to file an extraordinary appeal.

6, 6

The applicants were born in 1971 and 1977 and normally reside in Diakovce and Pata respectively. They were represented before the Court by Mr Štanglovič, and the first applicant also by Mr J. Baláž, lawyers practising in Šaľa and Bratislava respectively. The Government were represented by their Agent, Ms Pirošíková, who was succeeded in that function by Ms Bálintová. The facts of the case may be summarised as follows. THE APPLICANTS’ CONVICTION On 23 February 2010 an individual, A., was shot dead while driving a car on a street in Šaľa by another individual who was being driven in another car. The identity of the driver of the other car has never been established. In their findings of fact, which were disputed by the applicants at all stages of the proceedings, the courts established that the shooter was the second applicant and that the killing had been ordered by the first applicant. 9 . The precise factual description of the criminal act or failure to act ( skutková veta ) in relation to which the applicants were convicted indicates that (i) the first applicant had contracted the second applicant for the killing in return for a payment of a sum of money, (ii) the first applicant had had “long-standing personal differences” with A., (iii) the first applicant had previously asked another person, B., to act as the driver for the second applicant, but B. had refused, and (iv) the second applicant had asked another person, , to procure an automatic rifle for him, which had done. It was accepted by the courts that the key evidence on which the conviction rested came from B., and another individual, In particular, the evidence was as follows. B. testified to having been approached by the first applicant and another person in 2009 with a request to act as a driver for the second applicant with a view to killing someone, which he had refused. He also stated that he had heard utterances by the second applicant which he had understood as implying that the latter had killed A. confirmed that he had been asked by the second applicant to procure an automatic rifle for him and that he had done so. Once he had obtained the rifle, and prior to handing it over to the second applicant, he had tried it out and this was why gunshot residue had been detected on one of his hands after he had been detained by the authorities on the day of the killing. Earlier on that day, he had handed the gun over to the second applicant. Some days later he had met with the second applicant, who paid him for the gun and said that he had “taken” A., adding that the first applicant had had problems with A., who had previously tried to kill him. stated that he had been told by the second applicant that the latter had killed A. at the first applicant’s request. The applicants were found guilty of murder and the second applicant also of unlawful possession of firearms, in respect of which they were sentenced to twenty-two and twenty-five years’ imprisonment respectively. CRIMINAL PROCEEDINGS AGAINST THE APPLICANTS The criminal proceedings in the case commenced on 23 February 2010 and on 18 August 2011 the applicants were charged. Throughout the proceedings they were assisted by defence counsel and pleaded not guilty. 13 . On 2 April 2012, upon the completion of the investigation, the applicants were invited to inspect the case file and to identify any further evidence to be taken. They proposed nineteen points on which evidence should be taken. This included evidence from five witnesses to establish the relationship between the first applicant and A., as well as between A. and another person with whom A. had allegedly been in conflict, and from seven other persons to verify the reliability of the evidence given by as to his whereabouts on the day when A. was killed. 14 . According to the record of the applicants’ inspection of the case file, referring to Article 208 § 1 of the Code of Criminal Procedure (Law no. 301/2005 Coll., as amended – “the CCP”), the investigator dismissed the applicants’ proposal because “[he did] not consider the taking of that evidence necessary”. 15 . On 3 April 2012 the investigator requested the Public Prosecution Service (“the PPS”) to indict the applicants to stand trial on the above ‑ mentioned charges, explaining that their request for further evidence to be taken had been dismissed “because, on the basis of the evidence already taken, the evidentiary situation was such that the proposals [on the applicants’ behalf] would have no impact on it”. On 19 April 2012 the bill of indictment was filed with the Specialised Criminal Court (“the SCC”), resting solely on evidence identified by the PPS. 17 . On 30 April 2012 the applicants’ lawyer submitted a written request that the court take evidence on behalf of the defence on twenty points, which included those mentioned above. 18 . On 28 May 2012 the SCC held a public session for a preliminary examination of the indictment. On the matter of his request that further evidence be taken, the applicants’ lawyer explained that he sought to verify the submissions of as to his whereabouts on the day of the killing (e. whether he could have passed the presumed murder weapon to the second applicant) and as to how he had allegedly procured the weapon. At the pre ‑ trial stage, those submissions had been accepted as fact without any verification at all. Moreover, the evidence proposed would show that the first applicant had had no differences with A. and accordingly no motive to have him killed, and that the differences in question had rather been between A. and the other person previously mentioned. On 11 September 2012 the first applicant made a written submission to the SCC, denying having contracted the killing of A. and submitting that B., and were under suspicion of various organised criminal activities and arguing that they might have collaborated with the inquiry in return for immunity or in order to take revenge on the applicants. 20 . At a hearing held on 19 September 2012 the applicants’ lawyer reiterated the request for further evidence to be taken. He pointed out that the evidence from was contradictory and not credible, in particular as to his coming and going from a certain restaurant at a time when he was supposedly testing the gun. The authorities had completely failed to enquire into his allegations as to how he had procured the gun and had accepted a single version of the first applicant’s motive to have A. killed. 21 . In response, the PPS commented that some of the witnesses proposed by the defence had been heard before the bringing of charges against the applicants while several lines of enquiry were being considered. However, after the bringing of the charges, those lines of enquiry had no longer been pursued and it was unnecessary to hear evidence from those persons again. 22 . By a procedural decision adopted in the course of the hearing, the SCC refused to take and examine the evidence identified by the defence. Whereas the applicants in their application denied that any reasons had in fact been given for that decision, the following was noted in the record of the hearing: “Pursuant to Article 272 § 3 of the [CCP], the court refuses to take and examine the evidence adduced by [the applicants’ lawyer] ... in his submission of 30 April 2012 ..., [and] at the hearings on 28 June 2012, 12 September 2012 and others ... The presiding judge has provided reasoning for her decision and instructed the parties that no legal remedy against it was available.” In a judgment of 25 September 2012, the SCC convicted the applicants as indicated above. It acknowledged that the key evidence linking the killing to the applicants was the evidence from B., and In its judgment it made no reference to the evidence that the applicants had proposed to be taken and examined on their behalf or to its decision not to accept their request. As to the first applicant’s motive, and in particular the finding that he had had long-standing personal differences with A., the SCC noted that such differences had resulted in A.’s being charged in 2005 with having arranged for the murder of the first applicant. The applicants appealed, principally arguing that the SCC had based its conclusions solely on evidence on behalf of the prosecution and that the veracity of the witness evidence on which the indictment rested had not been verified by any means. Specifically, they referred to the evidence they had previously sought to have taken on their behalf. In addition, as to his supposed motive, the first applicant explained that the 2005 incident had involved his being shadowed by unknown persons. It was true that charges had been brought against A. in that connection. Nevertheless, there had been no links between them at all and the conflict referred to by the authorities had in fact been between A. and another person. The witnesses he had sought to have heard would have demonstrated this, as they had done when questioned prior to the bringing of the charges against him. 26 . On 3 April 2013 the Supreme Court dismissed the appeals. In so far as relevant, it held that the authorities had adequately established the facts to the extent necessary for their decision, and therefore it found that the taking and examination of further evidence had not been necessary. The Supreme Court concurred that the evidence from B., and had been central to the establishment of the facts. The ruling of the SCC as to the applicants’ guilt “was based on convincing evidence that beyond any doubt excluded any other alternative to the factual storyline established on the basis of that evidence”. The Supreme Court further held that the evidence had not been contested by anything but the applicants’ own submissions. The applicants appealed on points of law ( dovolanie ). They argued, inter alia , that throughout the proceedings they had been denied the right, guaranteed by Article 6 § 3 (d) of the Convention, to obtain the attendance and examination of witnesses on their behalf, which in their view had amounted to a violation of their rights of defence, thus constituting a ground on which an appeal on points of law was admissible under Article 371 § 1 (c) of the CCP. 28 . On 25 January 2018 the Supreme Court declared the appeal inadmissible. As to the applicants’ argument mentioned above, it held that a court’s decision to dismiss a request to take and examine evidence and the absence of reasoning for such a decision could not amount to a ground for the admissibility of an appeal on points of law under the CCP provision relied on. The applicants further pursued their rights by lodging two constitutional complaints under Article 127 of the Constitution, advancing essentially the same arguments as indicated above and relying also on their right to an adversarial trial. 30 . The Constitutional Court declared those complaints inadmissible on 4 December 2018 and 30 January 2019 respectively. In sum, it recognised that the courts’ findings of fact were “mainly based on incriminating evidence from three specific witnesses, to whom [the second applicant had] personally confessed ... and one of whom [had given] relevant evidence as to the manner in which the weapon used had been procured”. Under the subsidiarity principle, the Constitutional Court had no jurisdiction in relation to the SCC. As to the Supreme Court, it had adequately addressed all relevant aspects of the case. Parties to proceedings did not have a right to have all the evidence proposed by them taken and examined. The decision as to which piece of evidence to take and examine always rested with the court. Therefore, a court’s decision not to take and examine evidence proposed by a party, for example because it was immaterial or superfluous, could not be seen as preventing the party from acting before the court. APPLICATIONS FOR THE REOPENING OF THE TRIAL The applicants subsequently applied twice to have the trial reopened on the basis of new evidence. They pointed out that, in another trial on unrelated charges, B. and as the accused had submitted that they had been pressured by the police to collaborate with the investigation against the second applicant, leading to his conviction as outlined above. The first applicant also submitted that he had undergone a polygraph test, with the result attesting to his innocence. In addition, he argued that there was a new witness who could testify about the personality of and about the fact that the latter had confided in him what he had understood as an admission that the previous accusations against the applicants by had been false. 32 . The applications were dismissed, with the final decisions being given by the Supreme Court on 20 February 2018 and 10 December 2019. The court stated that it was true that in the other trial B. and had submitted that they had been coerced into incriminating the second applicant. However, those submissions had been made by them as the accused, thus exempting them from liability for making false statements. When questioned as witnesses in the proceedings concerning the applicants’ application for the reopening of the trial, B. and had refused to testify. As the police had denied any wrongdoing, there was in fact no new evidence to support the reopening application. Polygraph testing was not considered to be evidence in court proceedings in <COUNTRY> and the evidence from the new witness was untrustworthy. RELEVANT LEGAL FRAMEWORK CODE OF CRIMINAL PROCEDURE 33 . Article 2 of the Code defines the fundamental principles of criminal proceedings. Pursuant to paragraph 10, the prosecuting authorities are to proceed with a view to establishing the facts so that there can be no justified doubts ( dôvodné pochybnosti ) about them, and to the extent necessary for their decisions. Evidence is to be obtained as a matter of their official duty. The right to obtain evidence also appertains to the parties. The prosecuting authorities are to elucidate the circumstances weighing against the person facing charges ( obvinený ) and those in his or her favour with equal diligence, and to take evidence in both directions so as to enable the court to take a just decision. Article 34 defines the rights and duties of the person facing charges. Under paragraph 1, these include the right to propose that a piece of evidence be taken and to submit such evidence. 35 . Pursuant to Article 119, by means of criminal proceedings, it must be established, inter alia , whether the alleged act or omission ( skutok ) has taken place and whether it fulfils the elements of an offence (paragraph 1 (a)) and, if so, who carried out that act or omission and what the motive for it was (paragraph 1 (b)). 36 . Pursuant to Article 168 § 1, a judgment must contain, among other things, reasoning as to why the court refused to take further evidence. 37 . Once an investigation is completed, the officer in charge of it is to enable the defence and other persons to inspect the file and make proposals for the investigation to be supplemented. Such proposals may be dismissed if the officer does not consider them necessary (Article 208 § 1). 38 . Pursuant to Article 272 § 2, once all the evidence has been taken, the presiding judge is to establish whether the parties have any proposals for further evidence to be taken. Pursuant to paragraph 3 of that Article, a court is to refuse the taking and examination of a piece of evidence if it concerns a circumstance that is immaterial for the decision or can be established by means of other evidence previously proposed. The decision to refuse to take and examine a piece of evidence must be notified to the person who proposed the taking and examination of that evidence. As a general rule, the notification is oral and given at the opening of a hearing. The decision is reversible if in the course of the subsequent proceedings it turns out to be necessary to take and examine the given piece of evidence. The grounds on which an appeal on points of law may be lodged are listed in Article 371 § Under letter (c), these include instances of a fundamental breach of the rights of the defence.

Slovakia

The applicants are brothers and live with their parents, brother and two sisters next to the local police station of Saint-Josse-ten-Noode. They both complained that they had been slapped on the face by police officers – an allegation which is disputed by the Government –, one on 8 December 2003, the other on 23 February 2004, and pointed out that the events had taken place in the context of tense relations between their family and certain officers in the police station. A. Events of 8 December 2003 and 23 February 2004 The events of 8 December 2003 The applicants indicated that on 8 December 2003, around 4 p., the first applicant was standing with a friend in the street outside the door of the building where he lived with his family, and, having forgotten his keys, he was ringing the bell so that his parents would let him in, when a plain-clothes policeman, A.Z., had asked him to present his identity card. The first applicant had refused to comply, asking the officer to show his credentials. The officer had then grabbed him by his jacket – tearing it – and had taken him to the police station. The first applicant had been placed in a room and, while he was alone with A.Z., the officer had slapped him on the face as he was protesting about his arrest. The applicants produced a certificate issued on the same day at 20 p.by a general practitioner, who observed that the first applicant was “in a state of shock” and presented the following injuries: “erythema on the left cheek (disappearing)” and “erythema on the left-side external auditory canal”. The Government observed that, on account of the first applicant’s refusal to show his identity card, officer A.Z. had had no choice but to take him to the police station for the purposes of identification. The first applicant had then caused a scene, claiming that he was the victim of an injustice and an unlawful identity check, and had insulted an officer who was telling him to calm down. He had been authorised to leave the police station once his identity had been verified and after being informed by A.Z. that a police report would be filed against him for forceful resistance to a public officer, abusive behaviour and verbal threats. He had returned to the police station a few minutes later with his parents, accusing A.Z. of having struck him, but the officer had always denied this. The events of 23 February 2004 The applicants indicated that, on 23 February 2004 at around 10 a., while the second applicant was at the police station of Saint-Josse-ten-Noode and officer P.P. was interviewing him about an altercation involving him and his mother together with a third party (and about which the latter had filed a complaint), P.P. had slapped him on the face after asking him not to lean on a desk. He had then forced him to sign the statement by threatening to put him in a cell. The applicants produced a medical certificate issued on the same day by a general practitioner, who observed “bruising [on the] left cheek” of the second applicant. The Government explained that the second applicant had been very arrogant during his interview: slouching in his chair, leaning casually on P.P.’s desk, laughing without reason and giving pithy answers to questions. He had had his statement changed several times, saying that the police were paid to do that, and had threatened the officers on leaving by shouting that they would be hearing from him again. The Government emphasised that, in spite of the attitude of the second applicant, who was clearly intent on conflict, P.P. had remained calm and patient. B. Background to the events In the applicants’ submission, their family had been harassed by the Saint-Josse-ten-Noode police force. They stated that the problems had begun in 1999, when one of the officers had suspected their brother N. of deliberately scratching his car. N. had subsequently been accused of threatening the same officer and of committing robberies, charges on which he had been acquitted by the Brussels Youth Court on 21 April 2000. According to the applicants, the case against him had been entirely fabricated by members of the Saint-Josse-ten-Noode police by way of reprisal. They added that, on 24 June 1999, the first applicant, then aged 13, had been “beaten” by another police officer in the police station, where he had been taken following a fight in the street. He had sustained a perforated eardrum. His mother and one of his sisters, who had been in the waiting room, had been shaken and molested by police officers. On 25 November 1999 one of their sisters had been verbally aggressed by a police officer of the Saint-Josse-ten-Noode force and, on 11 March 2000, their brother N. had been searched, jostled and verbally aggressed by police officers. They further stated that in 2000, a “case” “initiated by the Saint-Josse-ten-Noode police force had been opened against N. and entrusted to an investigating judge”, but the proceedings had been discontinued. In the same year the second applicant had been “wanted for questioning” and even though the Saint-Josse-ten-Noode police had announced on 23 July 2002 that he was being taken off the relevant list, he had still had to take many steps at the level of the Crown Prosecutor and wait until March 2005 for the process to be completed, thus causing him much inconvenience. On 6 April 2001 and 12 July 2001, respectively, their brother N. and the second applicant had been verbally aggressed by members of the Saint-Josse-ten-Noode police. The applicants explained that they had systematically reported to the judicial authorities or police any incidents of which they were victims, and had filed complaints. Complaints concerning the events of 8 December 2003 and 23 February 2004, civil-party intervention, judicial investigation and decision to discontinue proceedings On 9 December 2003 the first applicant filed a complaint with the standing committee for the oversight of police services (or “Committee P”) and was interviewed by a member of the investigation department. The second applicant followed suit on 23 February 2004. He indicated in particular that he considered that the “general attitude of the Saint-Josse police vis-à-vis [his] family [had become] absolutely intolerable and excessive to the point [where they had envisaged] moving house”. Testimony was also taken from the applicants’ mother by the investigation department of Committee P in relation to the second applicant’s complaints; she also filed a complaint, indicating, moreover, that she herself had been treated with scant respect by officer P.P. On 5 May 2004 officer P.P. was interviewed by the director of internal oversight of the local police force in relation to the complaints by the second applicant and his mother. P.P. stated in particular that the second applicant had been particularly disrespectful towards him during his interview and that, whilst he had grabbed the youth by the arm to make him leave the office, he had not slapped him on the face. On 17 June 2004 the applicants applied to intervene as civil parties in respect of charges of harassment, arbitrary interference with fundamental freedoms, abuse of authority, arbitrary arrest and wounding with intent. They gave an overview of all their difficulties with the Saint-Josse-ten-Noode police, and expressly stated that they wished to intervene as civil parties in relation to the events of 8 December 2003 and 23 February 2004. Officers A.Z. and P.P. were charged with using violence, in the course of their duties, against individuals and, in particular, with intentional wounding or assault, and for engaging in arbitrary acts in breach of the rights and freedoms guaranteed by the Constitution. On 26 June 2004 an investigating judge of the Brussels Court of First Instance gave directions to the investigation department of Committee P asking it to take note of the applicants’ civil-party intervention, to interview them in order to ascertain the details of their complaint, to draft a report on the conduct of the Bouyid family, to draw up a list of the cases brought against them and complaints filed by them and to explain what action was being taken in that connection. Having regard to the fact that it had already taken testimony from the applicants when they had filed their respective complaints (see paragraph 15), the investigation department of Committee P decided not to interview them again. It addressed a report on 26 July 2004 to the investigating judge, based on the documents from the internal oversight department of the police area covering Saint-Josse-ten-Noode, describing the development of the relations between the applicants’ family and the local police force. The report then listed the cases against the family, noting in this connection that the first applicant had been implicated in proceedings opened in December 2003 for abusive and threatening behaviour and for obstructing a police officer, and N. in seven sets of proceedings opened between October 1997 and June 1999. It then noted that, in addition to the applicants’ complaints at issue in the present case, three judicial complaints had been filed by members of their family (two with Committee P, in June 1999 and July 2001, and one with the “Youth Division” in 1999) and two complaints had been dealt with by the internal oversight department of the police area covering Saint-Josse-ten-Noode. Lastly, citing a report drawn up in the context of a case against the first applicant and the findings of administrative inquiries, it noted the problematic nature of the relations between the local police and the Bouyid family and commented on the “general behaviour” of the latter, observing as follows: “In sum, and according to the police officers, the Bouyid family (especially the women and the mother in particular) apparently refuse to admit any implication of the children and family in the context of the abusive conduct in question. They are thus confronted in respect of their behaviour by this protective attitude. More generally, the family members allegedly behave aggressively and provocatively towards the police. Following the incidents involving police officer [B.], a dialogue facilitator apparently failed in an attempt at reconciliation, owing to an intransigent attitude on the part of the women in the Bouyid family. In 1999 and 2000 the situation required the appointment of a police cadet as a mediator for this family.” On 3 August 2004 the investigating judge decided to close the investigation and to send the file to the prosecution. On 16 November 2004 officer A.Z. was interviewed by a member of the investigation department of Committee P about the events of 8 December 2003. He stated in particular that he had not previously known the first applicant before he saw him at the door of a building in circumstances that appeared suspicious. In an application of 10 November 2005 the Crown Prosecutor called for the discontinuance of the case on the ground that “the judicial investigation [had] not established that the facts constituted a serious or petty offence and [had] not adduced any evidence that would justify the taking of further measures”. The applicants were informed that the case file would be finalised before the Committals Division of the Brussels Court of First Instance on 2 March 2006. On 1 March 2006 they sent an application to the investigating judge seeking twenty additional investigative measures. That request resulted in the adjournment sine die of the case before the Committals Division. On 7 March 2006 the investigating judge ordered two of the requested measures and rejected the remainder of the request on the ground that it concerned facts that pre-dated the events referred to him and that the measures sought were not necessary for the manifestation of the truth. Consequently, recapitulating all their complaints against the Saint-Josse-ten-Noode police force, the applicants and other members of their family sent the investigating judge a request for an “extension of civil-party status”, but it was rejected. The two additional measures were performed on 25 April, 15 May and 24 May 2006. In a decision of 27 November 2007 the Committals Division, endorsing the grounds submitted and maintained by the Crown Prosecutor, discontinued the proceedings. The applicants appealed against that decision. In an application of 3 December 2007 the prosecution requested that the discontinuance decision be upheld. On 5 February 2008 the applicants and other members of their family filed a complaint as civil parties in respect of all the facts that the investigating judge had considered not to have been referred to him (see paragraph 32 below). On 9 April 2008 the Indictments Division of the Brussels Court of Appeal, after refusing to join the case concerning the events of 8 November 2003 and 23 February 2004 to the new case that had been opened after the civil-party complaint of 5 February 2008, upheld the discontinuance decision in a judgment that read as follows: “... The facts of the case can be summarised as follows: – On 8 December 2003 the defendant [A.Z.] is said to have engaged in illegal police conduct against the civil party Saïd Bouyid, described by the latter as follows: the policeman [A.Z.], on stopping him outside his house, allegedly grabbed him by his jacket and tore it; he was then taken to the police station close by, where this policeman allegedly slapped him on the face with his right hand. – On 23 February 2004 the defendant [P.P.] is said to have engaged in illegal police conduct against the civil party Mohamed Bouyid, described by the latter as follows: on stopping his car in front of his house so that his mother could take out her shopping, he had a row with the driver of the car behind; he was summoned to the police station following a complaint by that driver; during the interview, Mohamed Bouyid was allegedly slapped by the defendant [P.P.] (see the medical certificate ...), who threatened to put him in a cell if he did not sign his statement, when in fact he wanted to change it. – The Bouyid family have apparently encountered great difficulties with certain members of the Saint-Josse-ten-Noode police force since March 1999, when police officer [B.] suspected Saïd Bouyid of having scratched his car, giving rise to some tension and to persecution of this family by the police. – There is said to be constant provocation on the part of the police of Saint-Josse-ten-Noode making the life of the Bouyid family unbearable. Both the police’s internal oversight department for the police area [concerned] and the investigation department of Committee P conducted an in-depth investigation into the facts complained of by the civil parties. It transpires from all the findings of the judicial investigation, and in particular from the diverging statements of the parties implicated, that there is no evidence against the defendants such as to justify their committal on the charges listed in the submissions of the Principal Crown Prosecutor, in respect of the period in which the offences were said to have been committed. The statements of the defendants, who deny the charges, are coherent; it is appropriate in this connection to refer to the detailed report concerning the general conduct of the civil parties’ family drafted by Committee P, which sheds light on the general context of the case. The civil parties have not adduced before the court, sitting as the Indictments Division, any new, relevant and convincing indications not previously brought to the attention of the court below and capable of revealing the slightest evidence against the defendants that might justify their committal for trial. Moreover, the judicial investigation did not bring to light sufficient evidence to show that a criminal offence had been committed by the defendants at the time of the incidents in which they were allegedly implicated. In addition, it does not appear from the case file that the provisions of section 37 of the Law of 5 August 1992 on the duties of the police have not been complied with. As emphasised by the submissions of both the Crown Prosecutor on 10 November 2005 and those of the Principal Crown Prosecutor, and by the decision of the Committals Division, the facts of the present case do not constitute a serious or petty criminal offence. ...” An appeal on points of law lodged by the applicants – in particular under Articles 3, 6 and 13 of the Convention – was dismissed on 29 October 2008 by the Court of Cassation. The Court of Cassation found that, in taking the view that the complaint in the case that had been submitted to the Indictments Division concerned only the events of 8 December 2003 and 23 February 2004, that Division had not failed to interpret the civil-party complaint in a manner that was compatible with its terms. It further took the view that the legislature had left it to the conscience of the members of the courts reviewing the investigation to decide whether or not the evidence gathered by the investigating judge was sufficient. It followed that, where the civil parties’ pleadings challenged or alleged the existence in fact of sufficient evidence, the reviewing court would reply by the mere finding that such evidence did or did not exist. The civil-party complaint concerning prior events and its outcome On 5 February 2008 six members of the Bouyid family, including the two applicants, had filed a civil-party complaint with an investigating judge of the Brussels Court of First Instance concerning all their accusations against the Saint-Josse-ten-Noode police officers, in particular relating to facts that pre-dated the events of 8 December 2003 and 23 February 2004 (see paragraphs 9 to 13 above). That civil-party complaint led to the appearance of six officers before the Brussels Court of First Instance, hearing the case on the merits. In a judgment of 30 May 2012 the court declared that the prosecution of the relevant offences was time-barred. It does not appear from the file that an appeal was lodged against that judgment.

On 14 November 2003 the St Petersburg City Court found the applicant guilty of murder and of membership of an organised criminal gang, and sentenced him to twenty-one years’ imprisonment. On 11 November 2004 the Supreme Court of Russia upheld the applicant’s conviction, in substance, on appeal. A. Conditions of detention It appears that the applicant has been serving his prison sentence in different correctional facilities. From 6 April to 23 December 2005 the applicant was held in correctional colony no. IK- 4 in the Magadan region. Throughout the period in question, he was repeatedly sanctioned for failure to comply with the colony’s internal regulations and was continuously detained in disciplinary cells. In particular, on 12 and 20 April 2005 the applicant was placed in a punishment cell for ten days for refusal to participate in cleaning work in the colony. On 28 April 2005 he spoke rudely to guards and was placed in a punishment cell for three days. On 3 May 2005 the applicant was placed in a punishment cell for seven days for having brought, in contravention of internal regulations, black tea leaves into the punishment cell. On 11 May 2005 the applicant refused to participate in cleaning work in the colony and was placed in a punishment cell for ten days. On 20 May 2005 the applicant was placed in a punishment cell for fifteen days for refusing to wear prison uniform and for swearing at colony officers. On 6 June 2005 the applicant wrenched the sink off the wall, broke the window frame and crushed a bulb with a kettle in the cell where he was detained. He was placed in a prison-type cell for one month. Cell population and general conditions of detention (a) The description submitted by the Government 9 . The Government’s submissions as regards the conditions of the applicant’s detention can be summarised as follows: Period of detention Cell type and number Cell surface in square metres Number of inmates Personal space afforded to the applicant in square metres 6 to 30 April Punishment cell no. 22 9 1 9 30 April to 10 May 2 95 11 May to 5 June 1 9 6 June to 30 July Prison-type cell no. 11 2 1 2 1 to 3 August Punishment cell no. 1 4 2 7 3 to 5 August 5 68 5 to 10 August 4 35 10 to 11 August 3 47 12 to 17 August Prison-type cell no. 15 9 1 9 17 August to 12 September 3 97 12 September to 23 December Punishment cell no. 22 9 1 9 All the cells were equipped with a ventilation system in working order. There was access to natural light. During the night the cells were lit with a 40-watt electric bulb. The windows measured 50 x 90 centimetres and were covered with a steel grille whose openings measured 3 x 3 centimetres. The grille did not prevent access to daylight. The toilet was located in the corner of the cell, some 5 metres from the dining table and the nearest bed. It was separated by a 1-metre-high brick wall with a door. The temperature in the cells was at least 16 0 The colony’s disciplinary premises were provided with six exercise areas measuring from 5 to 6 square metres. The inmates had an hour’s daily outdoor exercise. (b) The description submitted by the applicant The applicant provided the data similar to the Government’s submissions as regards the size and the population of the cells where he had been detained. According to the applicant, the cells where he was held were located in the basement of the building. They were damp and cold. The walls were covered with mould. There was no ventilation or hot water. The potable water contained yellowish residue and sand. The beds and mattresses were in poor condition and uncomfortable. The cells were overcrowded. The one-and-a-half-hour’s exercise took place in small yards which were always overcrowded. Nor was any exercise equipment available there. The applicant was allowed to take a shower every 7 to 10 days. On those days he was not allowed to have an outdoor exercise. The shower facilities were dirty. Domestic litigation concerning the conditions of the applicant’s detention On an unspecified date the applicant complained to the Magadan Town Court that the conditions of his detention were not in compliance with the applicable domestic standards. In particular, he alleged that the disciplinary cells where he was detained were not suitable for detention. There was no ventilation; the lighting was poor; the cells were overcrowded. There was no hot water. The cells were cold and damp. The wash sinks were not isolated from the toilet. On 12 October 2005 the Town Court dismissed the applicant’s complaint. The court noted as follows: “It follows from the materials in the case-file, that the punishment and prison type cells in correctional colony no. IK-4 are lit with electric bulbs of appropriate voltage. The temperature in the cells is in accordance with [statutory requirements]. According to certificate no. 49/4 of 21 September 2005 submitted by correctional colony no. IK-4, from 6 April 2005 to date [the applicant] has been detained in punishment and prison-type cells nos. 1, 11, 15, [and] Pursuant to Article 99 of the Russian Code on the Execution of Criminal Sentences, the personal space afforded per convict cannot be lower than 2 square metres in correctional colonies and 5 square metres in prisons. The materials in the case-file demonstrate that cell no. 11 measures 8 square metres, cell no. 22 measures 4 square metres, cell no. 1 measures 14 square metres, cell no. 15 measures 2 square metres. [The applicant] was detained in cells nos. 11 and 22 alone. In cell no. 1 there were five detainees, in cell no. 15 there were three detainees. Accordingly, the personal space afforded per convict in correctional colony no. IK-4 where [the applicant] has been detained to date is in compliance with law. ... According to the certificate of 7 October 2005 submitted by the respondent party, [the administration] conducted an inspection of cell no. 22 where [the applicant] is currently detained. Cell no. 22 measures 5 sq. m and houses ... two inmates. The floor is made of wood and covered with oil-based paint. The walls are 75 m high and covered with oil-based paint. The top part of the walls and the ceiling are white-washed. The lighting is combined. There is artificial electric lighting ... Natural light is ensured by a window measuring 50 by 90 There are window panes and a vent. The temperature in the cell is 21 0 The toilet is separated by a partition which is 1 m high. There is a centralised cold water supply. The bench is attached to the floor. Its base is made of concrete with a wooden seat... The table is made of concrete and attached to the floor. The pull-down beds are made of wood and have a smooth surface. The door is heat-insulated and adheres tightly to the door frame. Regard being had to the above, the court concludes that the conditions of the [applicant’s] detention in correctional colony no. IK-4 are in compliance with applicable laws ... .” On 8 November 2005 the Magadan Regional Court upheld the judgment of 12 October 2005 on appeal. Other proceedings On numerous occasions the applicant challenged in court the actions taken against him by the authorities of correctional colony no. IK-4, including the disciplinary sanctions imposed on him. Each time the courts considered his complaints in his absence, noting that the domestic rules of civil procedure did not impose on the court an obligation to ensure the convict’s presence in the courtroom. The applicant’s representative attended all the hearings, and made submissions to the court on the applicant’s behalf.

2, 3, 13, 5, 5

27238/03 are: Ms Zaynap Khadushovna Dzhambekova, born in 1959; Mr Adlan Lukayevich Dzhambekov, born in 1953; Ms Markha Adlanovna Dzhambekova, born in 1998; Mr Islam Adlanovich Dzhambekov, born in 1990; Ms Aminat Dodayevna Ependiyeva, born in 1949; Mr Ali Magomedovich Soltymuradov, born in 1992; Ms Toita Dodayevna Soltymuradova, born in 1954; Ms Aysha Magomedovna Soltymuradova, born in 1997; Ms Madina Magomedovna Soltymuradova, born in 1990; Mr Uvays Soltymuradovich Soltymuradov, born in 1930; Ms Zulpa Uvaysovna Soltymuradova, born in 1958; Ms Umisat Dodyevna Nakayeva, born in 1965; Ms Ayza Shaidovna Tokayeva, born in 1966; Ms Zara Baidovna Tatariyeva, born in 1940; Ms Kheda Rezvanovna Tatariyeva, born in 2000; Ms Zura Shamsudinovna Tatariyeva, born in 1967. Ms Marina Dukvakhayevna Islamova, born in 1980. The applicants in application no. 35078/04 are: Vakha Salmanovich Visaitov, born in 1944; Zulay Sayd-Khasanovna Magomadova, born 1949. They live in the Urus-Martan district, Chechnya. A. The applicants’ relatives’ arrest The applicants belong to four families, members of whom were detained in three separate incidents in 2001 and 2002 in the town of Urus-Martan or in villages in the Urus-Martan district. The four men disappeared following their detention, and the families have been conducting the search for them together. Apprehension of Imran Dzhambekov The first four applicants are relatives of Imran Dzhambekov, who was born in 1979. The first two applicants are his mother and father, and the third and fourth applicants are his younger sister and brother. The Dzhambekov family live in their own house at 209 Sovetskaya Street in the village of Goyty in the Urus-Martan district. In March 2002 Imran Dzhambekov was a second-year student at the Grozny Oil Institute, in the faculty of Construction Management and Economics. The local police office in Urus-Martan certified that he had no problems with the law and was known to his neighbours and fellow students as a responsible member of the community. In May 2003, at the first applicant’s request, the Goyty village policeman certified that there was no reason to suspect Imran Dzhambekov of involvement with illegal armed groups. On the evening of 19 March 2002 the first four applicants and Imran Dzhambekov were at home. At about midnight the first applicant heard someone trying to open the front door. She walked to the door, which opened, and a man wearing camouflage and a mask entered and pointed a machine gun at her. He turned on the light, and then about twelve more servicemen entered the house. They were all armed and masked. They spoke Russian without any accent and the first applicant noticed blue eyes and light features through the openings in the masks. The first applicant asked them what they wanted but they told her to keep quiet. They did not explain anything to the applicants and did not produce any papers. The servicemen asked the first applicant to indicate who was in which room of the house. The first applicant pointed to the room where her husband, the second applicant, was sleeping and to the room where her elder son Imran Dzhambekov was sleeping. One serviceman went into the second applicant’s room, and about ten of them went into Imran’s room. The first applicant managed to get past the servicemen into her son’s room and saw him lying on the floor face down, his hands tied behind his back. He was wearing a short-sleeved T-shirt and shorts in which he had been sleeping. The servicemen ordered him to be silent and asked the first applicant her son’s name and date of birth. Then they ordered her to fetch his passport and other documents, which she In the meantime the first and second applicants’ two minor children, the third and fourth applicants, started to cry and one of the soldiers took the children and the first applicant and escorted them into the second applicant’s room. Then they closed the door and pushed some furniture against it to block it from the outside. The second applicant received several blows from the servicemen in the face and in the stomach, and for some time lay on the floor in pain. When the applicants managed to open the door after about ten minutes, the servicemen had already left and taken Imran Dzhambekov with them. The first applicant ran along the street crying out her son’s name. She saw a group of servicemen walking towards two armoured personnel carriers (APCs) and one UAZ vehicle stationed on the crossroads of Sovetskaya Street and Titova Street. The second applicant meanwhile grabbed a metal rod and started to knock on a gas pipe pillar in order to wake up the neighbours. By the time the first applicant reached the crossroads, the military had boarded the vehicles and left along Titova Street. The first applicant tried to catch up with them but they turned into Pushkina Street. In the meantime, the second applicant got into his car and also tried to catch the military vehicles. At some point he picked up his wife, the first applicant, in the street and together they continued along the tracks left by the APCs until they reached the main road, from where there were two directions out of the village – to the north towards Grozny, or to the south towards Urus-Martan. Both exits were controlled by Russian military roadblocks. The first and second applicants first went to the roadblock at the exit towards Grozny. They personally knew a military serviceman who served there, Sergey from St. Petersburg, and the first applicant walked up to the roadblock and called him by name. When he came out she told him that servicemen in APCs had detained her son, and Sergey told her that no traffic had entered the village that night from their side, and that they should go to the roadblock on the road leading to Urus-Martan. The applicants then went to the house of the local policeman and asked him to go with them, but he refused. He told them to go and wait for the military vehicles at the roadblock until 6 a.because nobody would be allowed to travel during the curfew. They then went to the house of the head of the village administration, but did not find him. After that the first and second applicants went to the roadblock on the road leading towards Urus-Martan. There, at about 30 a., they saw two APCs and a UAZ vehicle heading towards Urus-Martan. They clearly noted the identification number of one of the APCs as 237, and a long dent and white paint marks on the back of the UAZ. Later the neighbours told them that they had noted the APC identification numbers as 237 and 246, and the UAZ number plate as “378-t”. The first and second applicants returned home and decided to continue the search in the morning, after the end of the curfew. In the street in front of their house they found Imran Dzhambekov’s one shoe and socks. They realised that he had been taken away in his shorts and T-shirt and barefoot, despite the cold. In addition to their own detailed statements, the applicants submitted witness statements from their neighbours about the events of the night of 19-20 March 2002, which corroborated their submissions. One witness testified that she had seen bruises on the second applicant’s face from the blow he had received that night. The neighbours testified that they had heard the first applicant crying out her son’s name and the knocking sound made by the second applicant, and had seen the military in two APCs and a man in underwear being put into an APC. The applicants also submitted a hand-drawn map of Goyty indicating the places to which they had referred. The applicants have had no news of Imran Dzhambekov since that night. The Government in their observations submitted in May 2006 (hereinafter “the first set of observations) did not dispute most of the facts as presented by the applicants. They stated that it had been established that at about midnight on 19 March 2002 unidentified men wearing camouflage uniforms and armed with automatic weapons had entered the applicants’ house at 209 Sovetsakaya Street in Goyty and taken away Imran Dzhambekov. In their subsequent observations submitted in March 2008 after the application had been declared admissible (“the second set of observations”) they disputed certain aspects of the applicants’ version of the events with reference to the documents from the criminal investigation file (see details below). Apprehension of Magomed Soltymuradov Applicants five to thirteen are relatives of Magomed Dodiyevich Soltymuradov, who was born in 1969. The fifth, seventh and twelfth applicants are his sisters, the sixth, eighth and ninth applicants his son and daughters, the tenth applicant his uncle and the eleventh applicant his cousin. The thirteenth applicant is Magomed Soltymuradov’s wife. The applicants live in two private houses located in Urus-Martan at nos. 5 and 7 Polevaya Street. Magomed Soltymuradov, his wife and three children lived at no. 5, while his uncle and cousin, the tenth and eleventh applicants, live in no. In addition, there is another building in the same household where the fifth applicant lives. Magomed Soltymuradov is a trained economist. Before the hostilities started he worked in a bank. Between November 1999 and December 2001 he lived as an internally displaced person with his wife and three children in the Volgograd Region. Since his return to Urus-Martan he had been unemployed, while his wife, the thirteenth applicant, worked as a medical worker in a hospital. The applicants stated that Magomed Soltymuradov had suffered from an ulcer since childhood and required constant medical treatment. On the night of 10-11 January 2002 the thirteenth applicant was in the hospital where she was working the night shift. The sixth, eighth and ninth applicants were at home with their father, Magomed Soltymuradov. They slept through the night, and at 7 a.when the ninth applicant woke up and was getting ready for school, she discovered that her father was not at home and that the front door had been broken down. 28 . The eleventh applicant testified that at about 2 a.on 11 January 2002 she had heard noises at the front door of her house. She had gone to the door, turned on the lights and asked in Russian who was there. She had been told in Russian to open the door for a document check. When she opened the door, four armed men in camouflage uniforms and wearing masks had entered the house. They had told her to produce her passport and had searched her room, including the bed and wardrobe. 29 . They had then proceeded to search the room of the tenth applicant, her father. After about twenty minutes they had left. The tenth and eleventh applicants then heard a car leaving the junction of Polevaya Street and Chekhova Street, from the direction of the house of Magomed Soltymuradov. The fifth applicant said that in the middle of the night she had heard noises in her house but had not understood what was going on. She had looked out into the courtyard, but it was dark and she could not see anything. She had then fallen asleep. At about 7 a.on 11 January 2002 the ninth applicant, Madina Soltymuradova, the daughter of Magomed Soltymuradov, alerted the tenth and eleventh applicants to her father’s absence. The relatives had together inspected the fresh snow in the courtyard, where they could clearly see traces of military boots with the marking “USSR”. There were also imprints of sports shoes. The applicants estimated that there must have been about twenty people in the courtyard. The footprints led to houses nos. 5 and 7, and inside the houses. In both buildings the front doors had been broken down. Magomed Soltymuradov’s room and bed were in disorder. The applicants also realised that 4,000 roubles (RUB) they had in cash had gone missing. The applicants submitted a hand-drawn map of the neighbourhood indicating the buildings to which they referred and the traces left by the boots. The applicants have not had any news of Magomed Soltymuradov since 11 January 2002. The Government in their first set of observations did not dispute the facts as presented by the applicants. They stated that it had been established that at about 3 a.on 11 January 2002 unidentified armed men wearing camouflage uniforms and masks and armed with automatic weapons had entered the household at no. 5 Polevaya Street in Urus-Martan and taken away Magomed Soltymuradov, whose whereabouts remained unknown. In their second set of observations the Government disputed the applicants’ version of their relative’s arrest, in view of the absence of evidence from the eye-witnesses that he had actually been taken away by armed men (see details below). They also noted that the applicants had not informed the investigation about the allegedly missing money. Apprehension of Rizvan Tatariyev Applicants fourteen to seventeen are relatives of Rizvan Shamsudinovich Tatariyev, who was born in 1977. The fourteenth applicant is his mother, the fifteenth applicant is his daughter, the sixteenth applicant his sister and the seventeenth applicant his wife. The applicants live in two private houses joined by a common courtyard, located at 16 Bolnichnaya Street in Gekhi, Urus-Martan district. Six members of the family of Arbi T., Rizvan Tatatriyev’s brother, live in the same household. Rizvan Tatariyev worked as a construction worker. In May 2003 the Gekhi village policeman and the head of the village administration certified that there was no reason to suspect him of involvement with illegal armed groups. On the night of 22 December 2001 the applicants and other members of their family were at home sleeping. At about 3 a.a large group of some twenty servicemen forcibly entered the household. They were armed with hand pistols, automatic weapons and truncheons and wearing camouflage uniforms and masks. They were tall and well-built and spoke Russian without any accent. They wore head lamps, so the applicants could not see their faces clearly, but the applicants were convinced that they belonged to the special forces. The applicants were awoken by the soldiers who were already in the house and had spread out into the rooms. They first went to the room of Rizvan Tatariyev’s nephew, Ruslan T., who at that time was 21 years old. They forced him onto the floor and held him there using their feet and truncheons. One of the female relatives fetched his passport at the request of the servicemen, who inspected it and said to another: “It’s not him.” They then proceeded to the room where the fourteenth applicant and her son Rizvan Tatariyev had been sleeping. Several servicemen threw Rizvan Tatariyev onto the floor and started to kick him, before tying his hands behind his back. They inspected his driving licence and said “It’s him”. They did not ask for his passport. In the meantime the fourteenth applicant tried to get to her son, but the military pushed her away. Then they escorted Rizvan Tatariyev outside through the back door and left one by one. They warned the applicants not to go outside the house or they would shoot. 39 . The applicants submitted that, according to their neighbours’ statements, the military had arrived in an APC and two UAZ vehicles which they had parked about 80 metres from the house. When the applicants came out of the house some time after the departure of the armed men, they found the gates open, but the military had already left. In addition to their own statements and the statements by their relatives who lived in the same household, the applicants submitted a hand-drawn map of the area and of the two houses, noting the places to which they had referred in their statements. In the morning they learnt that on the same night the servicemen had detained and taken away another man in Gekhi, Sharpudi Visaitov. The applicants have not seen or heard from their relative Rizvan Tatariyev since the night of 21-22 December 2001. The Government in their first set of observations did not dispute most of the facts as presented by the applicants. They stated that it had been established that at about 4 a.on 22 December 2001 unidentified armed men wearing masks had taken Rizvan Tatariyev away from his home, and that his whereabouts remained unknown. In the second set of observations the Government questioned the accuracy of certain details in the witness statements, including the alleged presence of the military vehicles (see below). Apprehension of Sharpudi Visaitov The eighteenth and nineteenth applicants are married. They are the father and mother of Sharpudi Vakhayevich Visaitov, who was born in 1980. The applicants live with their eight children, their daughter-in-law and two grandchildren in a private house at 20 Nuradilova Street in Gekhi, Urus-Martan district. Their son Sharpudi Visaitov worked as a car mechanic. In May 2003 the Gekhi village policeman and the head of the village administration certified that there was no reason to suspect Sharpudi Visaitov of involvement with illegal armed groups. On the night of 21 to 22 December 2001 the applicants and their family members were at home sleeping. At about 4 a.a large group of servicemen in camouflage uniforms forcibly entered their house. They were armed with machine guns and spoke Russian without any accent. Some of them wore masks, while others did not and had typically Slavic features. They were wearing helmets with head lamps. The men did not produce identity papers or any documents to justify their actions and gave no explanation. The applicants were woken up by the servicemen who were in their room and pointing automatic rifles at them. They told them to be quiet, not to wake up the children and to produce their identity documents for checking. They also asked them how many men there were in the house and if there were any weapons, to which the eighteenth applicant replied in the negative. The men proceeded to search the rooms and inspected the passports of the occupants. In the meantime a group of soldiers remained in the courtyard, aiming their weapons at the windows. The military then ordered four of the applicants’ sons, including Sharpudi Visaitov, to go into the courtyard. They were not permitted to dress or to put on their shoes. After a while Sharpudi’s three brothers were released and returned to the house one by one. The servicemen left after about thirty minutes and took Sharpudi Visaitov with them. Before leaving they told the applicants to remain inside the house for twenty minutes because the house was being watched by snipers and they would be shot at if they disobeyed. After the departure of the servicemen the applicants realised that they had taken Sharpudi Visaitov’s passport and some family photos. In the morning of 22 December 2001 the applicants found Sharpudi Visaitov’s slippers in the courtyard and saw the imprints of bare feet in the snow, which they concluded were his. They found an opening cut in the metal wire fence around their vegetable patch, through which the servicemen had arrived and departed. Later on they discovered that on the same night another person from the village had been detained, Rizvan Tatariyev. The Tatariyevs’ house is situated in Bolnichnaya Street, which is parallel to Nuradilova Street, so that the two households border each other’s back gardens. The applicants submitted a hand-drawn map of the area and of the house. They also identified witnesses from among their neighbours who testified that they had seen a large group of servicemen in the Visaitovs’ house on that night at about 4 a., as well as an APC and another vehicle stationed in the neighbouring Kirova Street. These statements were annexed to their application. The applicants submitted that two days after the detention of Sharpudi Visaitov an APC and a UAZ vehicle had arrived at their house. A group of military servicemen had told them that if they did not give up their weapons they would take away other men, as they had done with Sharpudi. The applicants had no weapons to surrender, and the military searched the house and left without taking anything. They did not identify themselves or present any papers. The applicants said that the vehicles had left in the direction of Urus-Martan. The Government in their observations did not dispute most of the facts as presented by the applicants. They stated that it had been established that at about 4 a.on 22 December 2001 unidentified armed men wearing masks had taken Sharpudi Visaitov away from his home, and that his whereabouts remained unknown. B. The search for Imran Dzhambekov, Magomed Soltymuradov, Rizvan Tatariyev and Sharpudi Visaitov and the investigation Immediately after the detention of their family members the applicants started to search for them. They coordinated their actions and conducted part of the search together. The search was primarily carried out by the mothers or sisters of the detained men. At some point in 2003 the applicants set up a non-governmental organisation called the “Society of War Victims”, which was headed by the first applicant. Part of the search was conducted on behalf of this NGO. On numerous occasions, both in person and in writing, they applied to prosecutors at various levels, to the Ministry of the Interior, the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic, military commanders, the Federal Security Service (FSB), the administrative authorities in Chechnya and to the media and public figures. They also personally visited detention centres, police stations, military bases and prisons in Chechnya as well as further afield in the Northern Caucasus. Besides personal visits, the applicants addressed numerous letters to the prosecutors and other authorities in which they described the circumstances in which their relatives had been detained and asked for assistance and details of the investigation. The applicants submitted copies of some of the letters they had written. The applicants received hardly any substantive information from official bodies about the investigations into the disappearances. On several occasions they were sent copies of letters forwarding their requests to different prosecution services. Below is a summary of the letters retained by the applicants and the replies they received from the authorities, and of other relevant developments. Search for Imran Dzhambekov Imran Dzhambekov was detained in the early hours of 20 March 2002. Once the curfew was over at 6 a.his parents, the first and second applicants, took warm clothes for him and went to Urus-Martan, in the direction taken by the military vehicles that had detained him. They personally visited the Urus-Martan temporary district department of the interior (VOVD) and the military commander’s office. They were not allowed to enter the buildings, but the officers denied that Imran Dzhambekov had been detained by them. On 20 March 2002 the applicants submitted a written application to the Urus-Martan district prosecutor, complaining of the unlawful arrest of their son by military servicemen travelling in two APCs. The applicants were received by the district prosecutor, who in their presence called the VOVD, the military commander’s office and the headquarters of the Ministry of the Interior special operations division no. 100 (referred to as DON-100). These services denied that their vehicles or servicemen had been involved in any operations in the village of Goyty on that night and stated that they had not detained Imran Dzhambekov. On the same day at about 2 p.the first and second applicants talked to officer Ya., the deputy military commander of the Urus-Martan district, who allegedly told them that a detainee “from the left side of Sovetskaya Street in Goyty” had been taken that night to the “boarding school”. The applicants said that the Urus-Martan VOVD was located in the premises of the former boarding school. Also on 20 March 2002, while standing in front of the gates of the VOVD, the applicants noticed a UAZ vehicle which they identified by white paint marks and a dent on the back as the vehicle involved in their son’s arrest. They also noted the vehicle’s number plates. On 21 March 2002 the applicants returned to Urus-Martan. They said that they were informed by an officer of the military commander’s office that their son was being held for questioning in the VOVD, and would be released in a day or two. On 23 March 2002 the applicants, through a middleman, contacted the chief of staff of the district military commander’s office A., who told them that they should look for their son at Khankala (the main Russian military base in Chechnya) and that he had been in the custody of the Regional Department for Combating Organised Crime (RUBOP). On the same day the second applicant spoke to a police detective from the VOVD, Alik Kh., who confirmed that the UAZ vehicle belonged to the head of the VOVD and advised him to look for his son at the RUBOP branch in Grozny. In early April an officer at the Urus-Martan district military commander’s office also told the first and second applicants that their son had been detained by the Grozny branch of RUBOP. At about 10 a.on 24 March 2002 the second applicant spoke to the head of the criminal investigation department of the VOVD, K., in the courtyard of the VOVD building. The second applicant showed him the UAZ vehicle, but the officer said that the car could have been taken without the VOVD’s knowledge; he again denied any knowledge of Imran Dzhambekov’s detention. On 25 March 2002 the Urus-Martan district prosecutor’s office (“the district prosecutor’s office”) opened criminal investigation file no. 61058 into the kidnapping of Imran Dzhambekov. On the same day the first applicant communicated all the known details of the APCs and the UAZ vehicle to the prosecutor’s office. At the end of March 2002 the first applicant talked to investigator Sergey from the district prosecutor’s office, who was in charge of her son’s case. He told her that he could not question anyone in the military commander’s office but that he had carried out checks and established that the APCs with the said numbers belonged to the district military commander’s office and the UAZ to the VOVD. He also said that when he had tried to put some questions to a serviceman from the commander’s office he had been threatened. The same investigator later told the applicants that he had visited the VOVD personally and had not found Imran Dzhambekov, but “that there were only four cells there to which he had been given access”. The applicants said that on 15 April 2002 the second applicant had again met the head of the criminal investigation department of the VOVD, K., at the VOVD who had denied that Imran Dzhambekov had ever been detained there. As proof, the officer showed the second applicant the log of detainees. The second applicant noted the name “Dzhanashvili” and suggested that it could have been his son, but that his name had been deliberately misspelled. The officer said that he could not show him that man either and refused to assist the applicants any further. The first and second applicants also explained that they had attempted to find a middleman among the military servicemen in order to pay for their son’s release, but had been told that it was impossible. Some time in April the applicants had also contacted a man who worked in Khankala who told them that Imran Dzhambekov had allegedly been detained there, that he had been charged with crimes related to terrorism and that he had been transferred to Rostov-on-Don on 18 or 24 April with a group of other detainees. On 16 May 2002 the first applicant had applied in person to the acting Chechnya Prosecutor, Mr Chernov, who invited her to a meeting in his office with a senior military prosecutor, Mr Kolomeyets. The first applicant recounted the story of her son’s detention to both men, who assured her that, since details such as the APC and the UAZ numbers were known, the case would certainly be resolved. The military prosecutor assured the applicant that he too would take the case under his personal supervision. On 24 May 2002 the first applicant wrote to the head of the Urus-Martan VOVD and asked him to investigate her son’s disappearance and the involvement of the two APCs and the UAZ vehicle, the numbers and other details of which she indicated. On 28 May 2002 the first applicant was granted victim status in the criminal investigation into her son’s abduction. On 10 June 2002 the first applicant again requested the Chechnya Prosecutor to organise an effective investigation into her son’s abduction. She stated in her letter the known details of the vehicles that had taken him away and requested that it be established to which authority they belonged. On 11 June 2002 the district prosecutor’s office replied to the applicants that all the necessary investigative measures had been carried out, but had not led to the identification of the culprits. On 22 June 2002 the head of the Urus-Martan district department of the interior (ROVD) informed the first applicant that their office had opened a search file on her missing son and that she would be informed of the results. On 9 July 2002 the Chechnya Prosecutor’s Office informed the first applicant that their office had examined the criminal investigation file concerning her son’s abduction, quashed the decision to adjourn the criminal investigation and forwarded the case for further investigation to the district prosecutor’s office. On 2 September 2002 the first applicant wrote a letter to the Urus-Martan military commander’s office giving details of her son’s abduction and requested an investigation to find out his whereabouts. On 23 January 2003 the Chechnya department of the FSB informed the first applicant that they had no information regarding Imran Dzhambekov and that he was not suspected of participation in illegal activities. Her letter was forwarded to the military prosecutor of the United Group Alignment (UGA) in the Northern Caucasus. On 31 January 2003 the military prosecutor of the UGA forwarded the first applicant’s letter to the military prosecutor of military unit no. 20102, based in Khankala, and instructed him to verify whether the UAZ vehicle with the number plate indicated by the applicant belonged to the VOVD of Urus-Martan. On 3 February 2003 the district prosecutor’s office informed the first applicant that the investigation of criminal case no. 61058 into her son’s abduction had been adjourned on 25 May 2002 owing to a failure to identify the culprits, and had been reopened on 30 January 2003. On 14 February 2003 the Chechnya Prosecutor’s Office informed the first applicant that the investigation in criminal case no. 61058 had been resumed on 30 January 2003 and that it was checking the information concerning the APCs and the UAZ vehicle communicated by her. On 18 February 2003 the military prosecutor of military unit no. 20102 responded to the first applicant, informing her that, as with her previous requests, this was not a matter for the military prosecutor’s office. The letter further informed her that the criminal investigation into her son’s abduction would only be transferred from the Urus-Martan district prosecutor’s office to the military prosecutor’s office if it was established that military servicemen where implicated in the crime. On 17 March 2003 the Prosecutor General’s Office wrote to a member of the State Duma, Mr Nikitin, in reply to his enquiry concerning missing persons and crimes against civilians in Chechnya. It stated that 1,250 criminal investigation files had been opened in respect of 1,802 kidnapped or missing persons. In 2002 alone 565 criminal cases had been opened in respect of 738 missing persons. 559 persons had been found. The letter listed a number of steps taken by the prosecutor’s office in order to prevent disappearances and to effectively investigate such cases, including the issue of a number of instructions and the holding of coordination meetings between various bodies. The letter also contained a list of missing persons, which included Imran Dzhambekov, Magomed Soltymuradov, Rizvan Tatariyev and Sharpudi Visaitov, and stated that criminal investigations were pending into each of those cases. It added that the involvement of servicemen from the Ministry of Defence or Ministry of the Interior had not been established in any of the cases, and the investigation into all the cases had been adjourned. Measures to solve the crimes were continuing. On 3 April 2003 Mr Nikitin forwarded the Prosecutor General’s Office’s response to the first applicant for information. On 8 April 2003 the first applicant submitted applications to the Minister of the Interior and to the Speakers of the two Chambers of the Federal Assembly, asking them to take into account the situation of the “disappeared” when working on a draft document on the granting of amnesties in respect of events in Chechnya. On 17 April 2003 the Chechnya Prosecutor’s Office wrote to the first applicant in response to her complaint. It stated that following her son’s kidnapping by unknown persons wearing camouflage on 20 March 2002, criminal case no. 61058 had been opened on 25 March 2002 by the district prosecutor’s office under Article 126, part 2 of the Criminal Code. On 25 May 2002 the investigation had been adjourned owing to a failure to identify the culprits. On 30 January 2003 the investigation had been reopened and accepted for further examination by an investigator from the district prosecutor’s office. During this additional investigation the first applicant had been granted victim status and the second applicant and other witnesses had been questioned about the circumstances of the abduction. The letter further stated that the investigation had forwarded requests for information to the various military and police authorities in order to identify APCs nos. 237 and 246 and the UAZ vehicle with registration number 378-02 that had been involved in the abduction. Additional requests for information had been forwarded to the Orenburg Region. The letter concluded that, unfortunately, these investigative steps had not led to the identification of the culprits or to the establishment of Imran Dzhambekov’s whereabouts. The investigation had again been adjourned, but attempts to solve the crime were continuing. On 18 April 2003 the first applicant, acting in her capacity as the head of the NGO “Society of War Victims”, forwarded a list of missing persons who had disappeared following their detention by the “power structures” in the Urus-Martan district to the Urus-Martan ROVD and asked for its assistance in finding them. On 21 April 2003 the military prosecutor of the UGA informed the applicants that, according to the information obtained from the military and police authorities of the Urus-Martan district, APCs with the identification numbers 237 and 246 and the UAZ vehicle with registration number R378-02 did not belong to any of these authorities. No special operations had been carried out in Goyty on the night of 19-20 March 2002 and Mr Dzhambekov had not been detained by servicemen from the federal forces. The letter advised the first applicant to direct further queries to the district prosecutor’s office in charge of the case. On 22 April 2003 the SRJI, acting on the first applicant’s behalf, wrote to the district prosecutor and the Chechnya Prosecutor asking them to provide an update of the criminal investigation into Mr Dzhambekov’s disappearance, including the results of the checks concerning the number plates of the vehicles involved. On 29 April 2003 the head of the Urus-Martan district administration wrote to the first applicant and informed her that the district administration was struggling to cope with the number of “enforced disappearances”. The letter stated that between 1 January and 22 April 2003 alone 27 cases of “disappearances” had been recorded in the district, and that as a result of the efforts made by the authorities, four persons had been released and three bodies found. On 10 June 2003 the district prosecutor’s office informed the first applicant that on 10 June 2003 their office had reopened the investigation into her son’s abduction. On 31 July 2003 and 20 August 2003 the second applicant wrote to the Chechnya Prosecutor. He restated the known circumstances of his son’s detention on 20 March 2002, including the details of the vehicles involved. He also referred to the information collected by him and his wife in the weeks following the abduction, according to which the APCs had passed through the military checkpoints without any problems and the UAZ vehicle belonged to the head of the Urus-Martan VOVD. He further complained that when he had been questioned on 31 January 2003 by an investigator from the district prosecutor’s office, the investigator had refused to record in the minutes of the interview full information about the number plates of the vehicles involved. The second applicant said that when he had subsequently accessed the minutes he had observed that the investigator had noted the APC number as “23”, even though he had given the number as “237”, and had failed to record the number plates of the UAZ. The second applicant requested the prosecutor to resume the investigation of criminal case no. 61068 and to take the action necessary to identify the servicemen responsible, as well as to transfer the case for investigation to the military prosecutor’s office in view of the involvement of military servicemen in the abduction. On 15 September 2003 the Chechnya Prosecutor’s Office informed the second applicant that following his complaint the decision of 10 July 2003 to adjourn the investigation had been reversed and on 12 September 2003 the investigation had been resumed by the district prosecutor’s office. It appears that the investigation was adjourned again on 12 October 2003. In January 2004 several applicants, including the first applicant, joined the open letter to President Putin signed by 131 relatives of persons who had “disappeared” in Chechnya. They referred to the information that in most known cases the disappeared persons had been taken away by State agents, judging from the use of military vehicles and their ability to travel unhindered in groups through military and security roadblocks. They deplored the absence of any official information about their family members following such detention and asked the President to ensure that investigations be conducted into such crimes. At some point the applicants requested the district prosecutor’s office to grant them access to the case file as victims in the proceedings. On 15 April 2004 the district prosecutor’s office rejected the first applicant’s request for access to the file, on the ground that the investigation was pending. 94 . The applicants appealed against that refusal to the district court, and on 6 August 2004 the Urus-Martan Town Court allowed in part the first applicant’s complaint against the district prosecutor’s office based on the latter’s failure to take effective steps to investigate her son’s abduction. The Town Court ordered the district prosecutor’s office to resume the investigation and to take a number of investigative measures that had been requested by the applicants, such as questioning the former head of the Urus-Martan VOVD and other servicemen from that office named by the applicants, and identifying the detainee referred to as “Dzhanashvili” who had been at the VOVD in March 2002. The court refused to grant the applicants access to the case file, stating that that right was accorded to victims only on completion of the investigation, not when the proceedings were adjourned. On 24 August 2004 the Chechnya Supreme Court upheld that decision. On 12 October 2005 the district prosecutor’s office informed the first applicant that the investigation had been resumed on 5 October 2005. The first applicant said that since the abduction of her son her health had deteriorated and that she suffered from a number of chronic illnesses that were made worse by the stress she was under. Search for Magomed Soltymuradov Magomed Soltymuradov disappeared from his house on the night of 10 to 11 January 2002. The applicants submitted that he had been detained by the same military servicemen who had searched the neighbouring house occupied by his relatives, the tenth and eleventh applicants. At about 9 a.on 11 January 2002 the fifth and tenth applicants, Magomed Soltymuradov’s sister and uncle, applied in person to the district prosecutor’s office, the district administration and the military commander’s office. On the same day they submitted to these offices written applications stating the circumstances of Mr Soltymuradov’s detention and asking for assistance in finding him. They submitted their application in person to the district prosecutor, who together with the applicants went to the Urus-Martan VOVD. When the prosecutor came out of the VOVD building he told the applicants that “the local guys did not do this, we do not work at night. These must be GRU [the Army’s Main Intelligence Service] or the FSB.” The prosecutor advised the applicants to look for Mr Soltymuradov at the military commander’s office or through the administration. On 11 January 2002 the head of the district administration forwarded the applicants’ complaint to the district military commander and asked him to find out the reasons for Mr Soltymuradov’s detention and obtain his release. 100. Throughout the following week Magomed Soltymuradov’s relatives maintained a vigil in front of the district prosecutor’s office, hoping that he would be released. The applicants also personally contacted several officials in the district administration and the former head of the Grozny administration, Vahid , who allegedly had good contacts among the military. They did not obtain any information about their missing relative. 101. On 17 January 2002 the fifth applicant again wrote to the district military commander. She stated the circumstances of her brother’s detention by military servicemen and asked for the commander’s assistance in obtaining his release. 102. On 21 January 2002 the seventh applicant, Magomed Sotymuradov’s other sister, wrote to the district prosecutor, the military commander, the head of the VOVD, the Memorial Human Rights Centre and the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic. In her letter she stated the known circumstances of her brother’s detention, referred to his medical problems and stated that since his arrest his relatives had received no information whatsoever about the reasons for his detention or the authority which had carried it out. She asked for assistance in finding her brother. 103. On 25 January 2002 the district prosecutor’s office opened criminal investigation no. 62004 into the abduction of Magomed Soltymuradov by persons unknown. On the same day the fifth applicant was granted victim status in the criminal investigation concerning her brother’s abduction. 104. On 27 January 2002 the fifth applicant wrote to the head of the Chechnya department of the FSB and asked for his assistance in finding her brother and obtaining his release. The letter was co-signed by dozens of their neighbours. 105. On 22 March 2002 the district prosecutor replied to the fifth applicant that the criminal case pending with that office concerning her brother’s abduction had failed to identify the culprits. 106. On 4 April 2002 the applicants received a handwritten note requiring “the relatives of Magomed Soltymuradov to come to the VOVD boarding school building at 3 p.on 5 April 2002” and to report to Alik Kh. 107. On 5 April 2002 the fifth, seventh and twelfth applicants, sisters of the missing man, went to the VOVD. At the entrance they were met by an operational detective, Alik Kh., who confirmed that he had sent the note, and invited only the fifth applicant to come inside. There he took her into a room with another officer of the VOVD and told the fifth applicant that her brother had been killed in Grozny on 5 January 2002. The fifth applicant was upset and confused by this statement, because her brother had only been detained on 11 January 2002. She asked if they had any papers confirming his death and if they could obtain the body for burial, but the officers said that they could not do anything because the case was under investigation. They asked her questions about a certain K. from the village of Gekhi, but the fifth applicant said that she did not know anyone from that village. 108. After that conversation, on 5 and 6 April 2002, the fifth applicant tried to find out further news from the district prosecutor’s office, but the investigator responsible for the case was not available. 109. On 8 April 2002 the fifth applicant talked to an officer at the Chechnya Prosecutor’s Office who told her that her brother was not listed among those killed. 110. In April 2002 the fifth applicant asked other relatives of missing persons who regularly gathered in front of the VOVD building if they knew K. from Gekhi, about whom she had been questioned in the VOVD. She met the brothers of K., who was also missing, and they told her that they in turn had been questioned about Mr Soltymuradov. 111. On 17 April 2002 the district prosecutor’s office informed the fifth applicant that on 25 January 2002 it had opened criminal case no. 61004. 112. On 4 June 2002 the fifth applicant applied to the military prosecutor of military unit no. 20102. She stated the circumstances of Mr Soltymuradov’s arrest and complained that the district prosecutor’s office had made no progress in its investigation and had not informed the relatives about the proceedings. She asked the military prosecutor to carry out an investigation into her brother’s arrest. 113. On 5 June 2002 the fifth applicant sent a similar letter to the Chechnya Prosecutor. She also asked him to ensure that she was informed about progress in the proceedings. 114. On 24 June 2002 the acting district military commander informed the fifth applicant that they had no information about the whereabouts of Magomed Soltymuradov. 115. On 20 September 2002 the military prosecutor of the Northern Caucasus military circuit forwarded the fifth applicant’s complaint to the military prosecutor of military unit no. 20102 and instructed him to check the facts and to give an answer to the applicant. 116. On 27 September 2002 the fifth applicant wrote to the head of the Chechnya department of the FSB and requested him to provide her with information about her brother, who had allegedly been detained by officers from that service. 117. On 7 October 2002 the Urus-Martan district department of the FSB wrote to the fifth applicant to say that they had no information about the detention or whereabouts of Magomed Soltymuradov. 118. On 14 October 2002 the district prosecutor’s office informed the fifth applicant that on 26 March 2002 the investigation in criminal case file no. 61004 had been suspended owing to a failure to identify the culprits. She was informed of her right to appeal. 119. On 17 October 2002 the fifth applicant appealed against the decision to adjourn the criminal investigation to the Urus-Martan District Court. She requested the court to quash the decision and to require the investigators to carry out a thorough investigation into her brother’s disappearance. 120. On 8 January 2003 the district prosecutor’s office wrote in response to the fifth applicant’s complaint, stating that the criminal investigation in case no. 61004 had thus far failed to establish Magomed Soltymuradov’s whereabouts or to identify his abductors. The applicant was invited to submit any relevant information which came into her possession to that office. 121. On 28 March 2003 the fifth applicant appealed to the Supreme Court of Chechnya against the Urus-Martan District Court’s failure to act. She stated that despite her numerous applications in person to that court no action had been taken in response to her complaint of 17 October 2002 concerning the ineffectiveness of the criminal investigation. On 16 April 2003 the Supreme Court referred the complaint back to the Urus-Martan District Court and instructed it to take appropriate steps. 122. The thirteenth applicant, the wife of Magomed Soltymuradov, applied to the district court for an order declaring her husband a missing person. On 3 April 2003 the Urus-Martan District Court granted her request and declared him a missing person with effect from 10 January 2002. The court took into account the statements of the thirteenth applicant and two neighbours who testified that on the night of 10 to 11 January 2002 her husband had been taken away by unknown persons and had not been seen since. The criminal investigation into the abduction had produced no results. The decision was not appealed against and became final on 13 April 2003. On the same day the court granted the thirteenth applicant’s request to certify Magomed Soltymuradov’s paternity of her three children, for the purposes of obtaining social-security benefits. 123. On 24 April 2003 the fifth applicant again complained to the civil and military prosecutors of Chechnya. She restated the known facts of her brother’s abduction and of the investigation, in particular referring to the questions put to her by the VOVD officers in April 2002 about K. and the questions K.’s relatives had been asked about her brother. She insisted that her brother could only have been detained by the authorities and asked the prosecutor to ensure an effective investigation. 124. On 5 August 2003 the fifth applicant complained to the Chechnya Prosecutor and requested him to reopen the investigation, to take steps aimed at finding her brother and to identify the perpetrators among the State structures. 125. On 1 September 2003 the Chechnya Prosecutor’s Office replied to the fifth applicant that the investigation into her brother’s abduction had been reopened on 21 August 2003 and that she could obtain news about the ongoing investigation at the district prosecutor’s office. 126. On 5 January and 19 April 2004 the fifth applicant asked the district prosecutor’s office to take a number of investigative steps and to inform her of the progress of the investigation. 127. On 6 May 2004 the district prosecutor’s office informed the fifth applicant that the investigation was pending with that office and that she would be informed if her brother’s whereabouts were established. 128. On 13 May 2004 the fifth applicant again wrote to the district prosecutor’s office. She claimed that the investigation had not made any genuine attempt to find her brother or identify the persons who had abducted him. She asked the prosecutor’s office to visit their house, to question all the relatives and neighbours who had been eye-witnesses to Magomed Soltymuradov’s abduction and could describe the persons and vehicles involved, to question the officers of the Urus-Martan VOVD who had information about her brother and K. in April 2002 and the servicemen of the Urus-Martan military commander’s office who could authorise the movement of military personnel and vehicles in the district. 129. On 5 July 2004, in response to a request from the investigator of the district prosecutor’s office in charge of criminal case no. 61004, the NGO Memorial stated that, according to their figures, between December 1999 and March 2004, 205 residents of the Urus-Martan district had “disappeared”. The NGO stressed that their information was not complete and that in every such case the information had been transferred to the law-enforcement bodies. 130. On 26 November 2004 the fifth applicant again asked the district prosecutor’s office to inform her about progress in the investigation of her brother’s abduction and to allow her access to the case file. 131. On 2 January 2005 the district prosecutor’s office informed the fifth applicant that the investigation had been suspended on the same day for failure to identify the culprits. The fifth applicant was also informed of her right to appeal. 132. In February 2004 several applicants, including the fifth applicant, joined the open letter to the then President of Chechnya Mr Alkhanov, signed by 126 relatives of persons who had “disappeared” in Chechnya. They referred to the information that in most known cases the disappeared persons had been taken away by State agents, judging from the use of military vehicles and the ability of the groups to travel unhindered through military and security roadblocks. They deplored the absence of any official information about their family members following such detention and asked the President to ensure that investigations be conducted into such crimes. Search for Rizvan Tatariyev 133. Rizvan Tatariyev was apprehended in his house in the early hours of 22 December 2001. In the morning of 22 December 2001 his relatives learned that on the same night another man, Sharpudi Visaitov, had been detained in their village of Gekhi. The fourteenth applicant, Rizvan Tatariyev’s mother, together with the parents of Sharpudi Visaitov, went to Urus-Martan and personally visited the district prosecutor, the military commander’s office and the head of the district administration. On the same day the fourteenth applicant submitted two written statements to the district prosecutor, stating the circumstances of her son’s detention and asking him to help establish his whereabouts. The relatives did not receive any news about the detainees. 134. On 2 January 2002 the district prosecutor’s office opened criminal investigation file no. 25180 concerning the kidnapping of Rizvan Tatariyev and Sharpudi Visaitov. The applicants submitted that since that date and until the communication of the complaint to the Government, no one from the investigation had visited their homes or questioned any family members or neighbours of Rizvan Tatariyev or Sharpudi Visaitov. 135. On 3 January 2002 the fourteenth applicant wrote to the head of the district administration and asked him to help her find her son. 136. On 2 March 2002 the investigator of the district prosecutor’s office adjourned the investigation of criminal case no. 25180 for failure to identify the culprits. The investigation had established that on 22 December 2001 unidentified persons wearing military-type camouflage uniforms and masks had apprehended Rizvan Tatariyev and Sharpudi Visaitov in their homes and taken them away in an unknown direction. 137. On 8 April 2002 the military prosecutor of military unit no. 20102 wrote to the fourteenth applicant, stating that there were no grounds for suspecting the involvement of servicemen from the Ministry of Defence, the FSB or the Interior Troops of the Ministry of the Interior in the abduction of her son. The supporting documents were forwarded to the district prosecutor’s office. 138. On 25 May 2002 the fourteenth applicant sent a letter to the Urus-Martan military commander asking for his help in finding her son. 139. On 30 June 2002 the Chechnya department of the FSB informed the fourteenth applicant that the facts stated in her application did not fall within the competence of the FSB. 140. On 29 August 2002 the district military commander replied to the fourteenth applicant that their office had no information about her son. He further stated that his office had no competence to charge anyone with a crime and that it would continue to make every effort to establish the son’s whereabouts. 141. On 3 September 2002 the office of the military prosecutor of the Northern Caucasus military circuit forwarded the applicant’s complaint to the military prosecutor of military unit no. 20102 in Khankala and instructed him to verify the facts and sent an answer to the applicant. 142. On 13 November 2002 the district prosecutor’s office issued a notice to the district social-security service confirming that Rizvan Tatariyev had been abducted on 21 December 2001 in Urus-Martan and that his whereabouts remained unknown, despite a pending investigation. 143. On 25 February 2003 the fourteenth applicant was granted victim status in criminal investigation no. 25180 concerning the abduction of Rizvan Tatariyev by unknown armed persons in military uniform. 144. On 11 June 2003 the district prosecutor’s office reopened the criminal investigation into Rizvan Tatariyev’s abduction and informed the fourteenth applicant accordingly. 145. On 17 June 2003 the Chechnya Prosecutor’s Office informed the fourteenth applicant that on 2 March 2002 criminal investigation no. 25180 into her son’s abduction had been adjourned for failure to identify the culprits. On 10 June 2003 the district prosecutor had quashed that decision as unlawful and forwarded the case for additional investigation. 146. On 11 July 2003 the district prosecutor’s office again adjourned the investigation and informed the fourteenth applicant of her right to appeal. 147. In April 2004 the fourteenth applicant asked the Urus-Martan military commander to help find her son and establish the reasons for his detention following his arrest by State servicemen at his own house on 22 December 2001. 148. On 8 December 2005 the head of the criminal police department of the Urus-Martan ROVD informed the fourteenth applicant that they had no information about any special operation on 22 December 2001 or the detention of her son by the military or police. He also stated that requests for information had been sent to all the district departments of the interior in Chechnya and further afield in the region, as well as to the main information centre of the Ministry of the Interior. 149. In September 2006 several applicants, including the fourteenth applicant, joined an open letter to the Chairman of the Parliament of Chechnya, signed by more than a hundred relatives of persons who had “disappeared” in Chechnya. They referred to information that in most known cases the disappeared persons had been taken away by State agents. They deplored the absence of any official information about their family members following their detention and asked the Chairman to ensure that investigations be conducted into such crimes. Search for Sharpudi Visaitov 150. Sharpudi Visaitov was apprehended in his house in the early hours of 22 December 2001. In the morning of 22 December 2001 the eighteenth and nineteenth applicants (Sharpudi Visaitov’s father and mother) learned that on the same night another man, Rizvan Tatariyev, had been detained in Gekhi. Together with the parents of Tatariyev they went to Urus-Martan and personally visited the local prosecutor, the military commander’s office and the head of the district administration, stating the circumstances of their sons’ detention and asking them to help establish their whereabouts. They did not receive any news about the detainees (see above). 151. On 24 December 2001 the eighteenth applicant wrote to the district prosecutor and the military commander and asked them about the reasons for his son’s detention. 152. On 2 January 2002 the district prosecutor’s office opened criminal investigation no. 25180 into the abduction of Rizvan Tatariyev and Sharpudi Visaitov by persons unknown. The applicants submitted that despite the opening of the investigation, until the communication to the Government of their complaint to the European Court no one conducting the investigation had visited their homes or questioned any family members or neighbours of theirs or of Rizvan Tatariyev. 153. On 8 April 2002 the military prosecutor of military unit no. 20102 replied to the eighteenth applicant that it had been established that no servicemen from the Ministry of Defence or the Interior Troops of the Ministry of the Interior had participated in the actions of which he had complained. The complaint had therefore been forwarded to the district prosecutor’s office. 154. On 21 May 2002 the nineteenth applicant wrote to the district military commander and asked for assistance in finding her son, who had been taken away by unknown armed servicemen. 155. On 28 February 2003 the nineteenth applicant was granted victim status in criminal investigation no. 25180 concerning the abduction of Sharpudi Visaitov. 156. On 7 December 2004 the nineteenth applicant wrote to the district prosecutor’s office. She reiterated the available information about her son’s arrest and insisted that the detention had been carried out by State servicemen. She asked the prosecutor to take a number of steps in order to identify the agency, vehicles and servicemen involved in the arrest and thus to establish the whereabouts of her son. She also asked him to inform her of progress in the investigation. 157. The nineteenth applicant stated that since her son’s disappearance her health had deteriorated significantly. She suffered from a number of chronic diseases of the heart and respiratory system and from hypertension, and in August and September 2001 had twice been taken to hospital. In September 2001 she has been advised to undergo surgical treatment in Moscow, but had not done so. Summary of the investigations as submitted by the applicants 158. The applicants were thus informed that three criminal investigation files had been opened by the district prosecutor’s office in respect of the kidnappings of their relatives: file no. 61068 opened on 25 March 2002 in respect of Imran Dzhambekov, file no. 62004 opened on 25 January 2002 in respect of Magomed Soltymuradov, and file no. 25180 opened on 2 January 2002 concerning the abduction of Rizvan Tatariyev and Sharpudi Visaitov. These proceedings were adjourned and reopened several times, but produced no tangible results. 159. The first applicant was granted victim status on 28 May 2002 in criminal investigation no. 61068 into her son’s abduction. On 25 January 2002 the fifth applicant was granted victim status in criminal investigation no. 62004 concerning her brother’s abduction. On 25 February 2003 the fourteenth applicant and on 28 February 2003 the nineteenth applicant were granted victim status in criminal investigation file no. 25180 concerning the abduction of their sons. It appears that no other relatives of the missing men were granted victim status in the proceedings, and very few persons among the relatives and neighbours – except for those granted victim status – were questioned, at least until the communication of the complaints to the respondent Government. Information submitted by the Government about the investigation 160. In response to requests by the Court, the Government disclosed a number of documents from criminal files nos. 61068, 62004 and 25180. After the case had been declared admissible, they provided 159 pages of documents from the three investigation files, including decisions to open, to suspend and resume the investigations and to grant victim status, letters to the relatives informing them of the adjournment and reopening of the proceedings and various witness statements. Relying on information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that the disclosure of the remaining documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. 161. These documents, as well as the Government’s submissions on the progress of the investigation can be summarised as follows. Investigation into the kidnapping of Imran Dzhambekov 162. On 20 March 2002 the first applicant submitted a written application to the district prosecutor, asking him to investigate and find her son, who had been taken away that night by a group of military servicemen in two APCs. The first applicant indicated that she had not seen the hull numbers of the APCs. 163. On 25 March 2002 the Urus-Martan ROVD opened a search file in respect of Imran Dzhambekov, who had been taken from his house by unknown armed men. 164. On 25 March 2002 the district prosecutor’s office opened criminal investigation no. 61058 into the kidnapping of Imran Dzhambekov. According to a document issued on 20 April 2006 by the acting district prosecutor, the main aspect of the crime examined by the investigation was the involvement of “power structures and military units” (“ силовых структур и воинских подразделений »). 165. On 25 March 2002 the first applicant was questioned as a witness. The Government submitted a copy of her witness statement, in which she stated that at about midnight on 19 March 2002 a group of about ten or twelve armed and masked men wearing camouflage uniforms, had entered their house. The men had hit her husband, locked her in a room with her younger daughter and taken her son to two APCs which had been stationed not far from the house. She had followed the APCs on foot, while her husband had taken his car and followed the two APCs to the road leading towards Urus-Martan. He had noted their identification numbers as 237 and 246; he had also noted the figures “02” on the number plates of a UAZ vehicle which had accompanied the APCs. The first applicant had reached the roadblock situated at the exit of the village on foot, where she had been told that the vehicles had not used that road. 166. On 31 January 2003 the first applicant was granted victim status in the investigation and questioned. She was questioned again on 20 June 2003 and on 18 October 2005. On 20 June 2003 she explained that on 17 April 2002 she and her husband had travelled to the Khankala military base and talked to man called “Akhmed” who worked there. On 11 May 2002 “Akhmed” had told them that their son had been transferred to Rostov-on-Don upon charges of terrorism. On 18 October 2005 she again submitted details of her son’s detention. She referred to the APCs’ hull numbers which she had noted as 237 and 246, and the UAZ vehicle as “R 378 02”. She also specified that the intruders had talked between themselves in unaccented Russian and that she had seen blue eyes and light features in the openings of the masks and concluded that they were Russian. She described the discussion with the police detective Alik Kh. who had confirmed that the UAZ vehicle belonged to the Urus-Martan VOVD and that he was not aware where it had been taken on the night of 19 March 2002. 167. The second applicant was questioned on 31 January 2003. According to his statement submitted by the Government, on the night of 19 March 2002 he had been awoken by men dressed in blue camouflage uniforms, who had entered their house and hit the second applicant several times in the face and torso. They had then locked his wife and two younger children in the room, having blocked the door with a sofa. Once the applicants had managed to get outside, they realised that their eldest son Imran had been taken away. After the abductors had left, the second applicant had run into the street and seen a group of men walking away, but had not at that time seen the APCs and vehicles. His wife, the first applicant, had pursued the men on foot, while he had taken his car and followed two APCs and the UAZ vehicle along Lenina Street towards the exit to Urus-Martan. He had then decided to go to the head of the local administration in order to ask him to notify the military at the roadblock, but had not managed to find him. The guards at the house had told him that they had no radios and could not contact the roadblock. He had then gone to the house of the local policeman, who told him to wait at the roadblock leading to Goyty, at the eastern side of the village. At about 2 a.on the same night he had seen the same APCs and UAZ moving towards Urus-Martan. He noted the two last digits of the identification number of one of the APCs as “23” and the number plate of the UAZ vehicle as “R-378 02”. The second applicant further stated that he had later seen the UAZ in the courtyard of the Urus-Martan VOVD. Police detective Alik Kh. from the VOVD had informed him that his son had probably been arrested by the RUBOP and taken to Khankala. The same information had been given to him by Lieutenant-Colonel G. who was the deputy military commander of the Urus-Martan district. 168. The second applicant was further questioned on 26 October 2005. He again recounted the events of the night of 19 to 20 March 2002, and repeated the details about the number plate of the UAZ vehicle and the hull numbers of two APCs. He also referred to the discussion with Alik Kh. who had confirmed that the vehicle had been used on the night in question in Goyty. The second applicant had again mentioned the discussion he had had with the officer from the military commander’s office, G., who had told him to look for his son in Khankala, at the RUBOP. Finally, he had provided a detailed physical description of his son and of the clothes he had been wearing on the night of abduction. 169. The Government also submitted four witness statements by the Dzhambekovs’ neighbours which had been taken in December 2005. The neighbours confirmed that they had heard noises and screaming in their neighbours’ courtyard on the night of Imran Dzhambekov’s kidnapping, but said that they had not seen the kidnappers or any vehicles. 170. The Government also furnished the transcripts of the questioning of various officials by the investigators as follows. On 27 February 2003 the investigators questioned officer Ya., deputy head of the district military command, who denied that he had known Imran Dzhambekov or had any information about his abduction. He also stated that Lieutenant-Colonel G. had left Urus-Martan in the autumn of 2002. 171. In December 2005 the deputy head of the Urus-Martan district administration stated that the Dzhambekov family had never informed their office of their son’s kidnapping and that he had no information about any special operations having taken place in Goyty on 20 March 2002. 172. In February 2006 the then head of the Goyty village administration confirmed that in March 2002 he had met the first applicant who had complained about the disappearance of her son. He had no further information about the case. 173. On 2 December 2005 an investigator had inspected the scene of the crime at the Dzhambekovs’ house. 174. The Government also submitted copies of several requests for information that had been sent by those investigating Imran Dzhambekov’s disappearance to various State bodies. On 31 January 2003 and 12 February 2003 the investigators asked the Urus-Martan military commander’s office whether on 19 and 20 March 2002 “sweeping operations” had been carried out in Goyty, whether Imran Dzhambekov had been detained during such operations and where he had been taken. They further asked the military commander’s office to establish the provenance of the APCs with hull numbers 237 and 246 and the UAZ vehicle with number plate “R 378 02” and to disclose information about officer G. so that he could be questioned as a witness. In its response, the military commander’s office denied all knowledge of any of these points. In March 2003 it informed the investigators that it had no information about the alleged involvement of Imran Dzhambekov in illegal armed groups. In May 2003 the military commander also informed the investigators that his office had been established in December 2002, that it used a different form of numbering for its APCs and that it had no number plates with the regional plate suffix “02”, since it used the regional number “15”. 175. According to other documents submitted by the Government, on 18 February 2003 the Chechnya department of the FSB had informed the investigators that it had no information relevant to the case. The local bodies of the Ministry of the Interior and the prosecutors’ offices had never detained Imran Dzhambekov and had carried out no criminal investigation in respect of him. He had not been brought to any of the remand centres in the Southern Federal Circuit. 176. The Government submitted that the statements made by the first and the second applicants to the investigators were mutually contradictory and inconsistent with their statements submitted to the Court. The Government thus questioned their credibility and veracity. They further maintained that the applicants’ assertion that they had noted the numbers of the military vehicles was irrelevant, because they had seen the APCs at the roadblock one and a half hours after the kidnapping of their son, so that there were no grounds for suspecting that Imran Dzhambekov had been transported in them. 177. The decisions to adjourn the investigation submitted by the Government established that the abductors had used two APCs with the identification numbers 237 and 246 and a khaki-coloured UAZ-469 with the number plate “R 378 02”. The provenance of these vehicles had not been established. 178. The documents and additional information submitted by the Government indicate that between March 2002 and June 2006 the investigation was adjourned on seven occasions, and each time reopened upon the orders of supervising prosecutors on account of the “incomplete nature of the investigative measures”. Investigation into the kidnapping of Magomed Soltymuradov 179. On 11 January 2002 the fifth applicant wrote to the district prosecutor’s office and asked for help in finding her brother, who had been taken away during the night by unknown armed men. 180. On 18 January 2002 the fifth applicant submitted a complaint to the Chechnya Prosecutor’s office, stating that at about 3 a.on 11 January 2002 her brother Magomed Soltymuradov had been taken away by unidentified servicemen. She referred to the written complaints her family had submitted on 11 January 2002 to the district prosecutor’s office and the district administration, which had produced no results. 181. Criminal investigation file no. 61004 was opened by the district prosecutor’s office on 25 January 2002. According to a document issued on 20 April 2006 by the acting district prosecutor, the scenario favoured by the investigators was the involvement of “power structures and military units”. 182. On 25 January 2002 the fifth applicant was questioned and granted victim status. According to her statement, which was produced by the Government, unknown persons had entered the family’s house at about 3 a.on 11 January 2002 and taken her brother away. She had learnt of the crime from her uncle, the tenth applicant. She referred to the imprints of military boots that had been seen by the family members the following morning. While scarcely legible, another transcript of an interview with the fifth applicant dated 10 April 2002 indicates that on 5 January 2002 her brother had been away from home for the whole day and that on that day a landmine had exploded in Urus-Martan. She was further questioned on 3 December 2004, when she told the investigators about her visit to the Urus-Martan VOVD in April 2002 and her encounter with Alik Kh., who had told her about her brother’s alleged death in Grozny on 5 January 2002. 183 . The same file contains three other witness statements collected by the police detective Alik Kh. in April 2002 from residents of Gekhi. They concern the explosion of a landmine in Urus-Martan on 5 January 2002, as a result of which one serviceman had died. Two of the witnesses indicated one Ruslan K. from Gekhi as the person responsible for the explosion, and one witness mentioned that Magomed Soltymuradov had caused the explosion. The witness did not indicate the source of this knowledge. 184. The tenth applicant was also questioned on 25 January 2002 and confirmed that on the night in question a group of men wearing camouflage uniforms and masks had broken down the door of his house, searched the house and left. In the morning he learnt that Magomed Soltymuradov had disappeared, and saw footprints in the fresh snow in the courtyard. He was not aware who had abducted his nephew and whether they had used any vehicles. 185. The Government noted that the applicants had stated to the Court that RUB 4,000 had disappeared from their house; but had made no mention of this in their statements to the domestic investigators. They also specified that the fifth applicant had told the investigators “that [on 5 April 2002] the operational detective [of the Urus-Martan VOVD], Kh., had not informed her of the death of her brother, but had asked for information about the possible death of the latter”. 186. On 6 December 2004 the investigators inspected the scene of the crime at no. 5 Polevaya Street, Urus-Martan. 187. In June 2006 the pre-trial detention centres of the Northern Caucasus informed the investigators that Magomed Soltymuradov had not been detained in any of them. 188. The documents submitted by the Government indicate that between January 2002 and June 2006 the investigation was adjourned on four occasions, and each time reopened upon the orders of supervising prosecutors owing to “the need to carry out additional investigative measures.” Investigation into the kidnapping of Rizvan Tatariyev and Sharpudi Visaitov 189. On 22 December 2001 the nineteenth applicant complained to the district prosecutor’s office about the detention of her son Sharpudi Visaitov on the previous night by military servicemen wearing masks. A similar statement was submitted by the fourteenth applicant on 3 January 2001 concerning the kidnapping of her son Rizvan Tatariyev. 190 . On 2 January 2002 the district prosecutor’s office opened criminal investigation no. 25180. The decision stated that “at about 4 a.on 22 December 2001 servicemen from the federal forces wearing balaclavas, [had] detained and [taken] away in an unknown direction Rizvan Tatariyev and Sharpudi Visaitov. The whereabouts of the said persons [had] not been established”. Further decisions also referred to the “army camouflage uniforms” of the kidnappers. 191. The fourteenth applicant was questioned on 3 January 2002. She gave a detailed statement about the kidnapping of her son in the early hours of 22 December 2001. She described their dark army uniforms and the electric lamps attached to the foreheads, as well as masks and said that they were armed with handguns. They had spoken Russian and forbidden the family members to follow them into the courtyard, unless they wanted Rizvan Tatariyev to be killed on the spot. The fourteenth applicant did not see or hear any vehicles that night. She was again questioned on 25 February 2003 and granted victim status in the proceedings. On 11 December 2004 she was questioned once more and repeated her statements. According to the Government, she was further interviewed on 28 July 2005, but no copy of her statement has been submitted. 192. On 26 February 2003 the investigators questioned the sixteenth applicant. She confirmed her mother’s statements about a group of some eight to ten armed men in dark blue camouflage uniforms and masks, with electric lights attached to their foreheads, saying that the men had entered their house on the night of 22 December 2001, checked their documents and led away her brother Rizvan Tatariyev. 193. On 28 February 2003 the nineteenth applicant was granted victim status and questioned. In her statement about the detention of her son Sharpudi Visaitov she recounted that soon after 3 a.on 22 December 2001 a group of seven to eight armed persons had entered their house, while about a dozen more remained in the courtyard. They were armed with automatic weapons and instructed the inhabitants to remain calm because it was a passport check. They checked the documents and looked around the house before leaving, taking Sharpudi Visaitov with them. They also took away the passport of the nineteenth applicant’s other son, Sharip Visaitov, probably by mistake. In the dark one of the applicant’s sons saw two UAZ cars and a large vehicle stationed further down the street, but could not make out any details. The same group then went to the Tatariyevs’ house. 194. On 10 December 2004 the investigators again questioned the nineteenth applicant. She added that the intruders who had taken away her son had spoken unaccented Russian and that Sharpudi Visaitov was a friend of Rizvan Tatariev, who had also been kidnapped that same night. 195. Also on 10 December 2004 the investigators questioned the eighteenth applicant, Sharpudi Visaitov’s father. His statements about the circumstances of the kidnapping were similar to those previously given by his wife. He stressed, in addition, that Sharpudi Visaitov and his friend Rizvan Tatariyev had never been involved in illegal activities and had no contact with illegal armed groups. 196. On 12 December 2004 the investigators questioned another eye-witness of the abduction of Rizavn Tatraiyev: his brother’s wife. She confirmed that the kidnappers had been dressed in dark camouflage uniforms, and were masked and armed with automatic weapons. They had checked the residents’ passports and when they saw Rizvan Tatariyev, one of them said “It’s him”. They had spoken between themselves in Russian and did not address each other by name or rank. 197. According to the Government, two other relatives of Sharpudi Visaitov who were not eye-witnesses to his abduction were also questioned in November 2004, but were not aware of the identities of the kidnappers. They did not produce copies of these statements. 198. According to the information submitted by the Government, the investigation was resumed and suspended on numerous occasions. In June 2006 the investigators collected information from the Chechnya Department of the FSB, district departments of the Interior and temporary detention wards in Chechnya. None of these agencies had information about the detention of the two men or about their involvement with illegal armed groups. Information relating to all three investigations 199. With regard to the three investigations, the Government stated that the applicants’ statements that those responsible for kidnapping their relatives belonged to State agencies could not be confirmed. It was impossible to identify the perpetrators of the crimes. The applicants had stated during questioning that they did not recall any details of the clothes, weapons or markings on the abductors’ uniforms. 200. The Government stated that the investigating authorities had sent requests for information to the competent State agencies and taken other necessary steps, but had found no evidence to support the involvement of the “special structures” ( специподразделений ) in the crimes. The law ‑ enforcement authorities of Chechnya had never arrested or detained the applicants’ four relatives on criminal or administrative charges and had not opened criminal investigations into their actions. The investigations had been adjourned and reopened on several occasions, and the applicants had been informed of these developments. The Prosecutor General’s Office had supervised the progress of the investigations, which were ongoing. Detention of the first, fifth and fourteenth applicants and subsequent events Events of 11-15 December 2002 201. On 11 December 2002 Zaynap Dzhambekova (the first applicant), Aminat Ependiyeva (the fifth applicant) and Zara Tatariyeva (the fourteenth applicant) learned that on that day a “congress of the Chechen people” was to take place in the town of Gudermes. It was announced that the congress would be attended by members of the State Duma and the Chechnya and Federal Governments and by journalists. The three women decided that they would travel there and try to draw attention to their relatives’ plight. They were joined by a fourth woman who was also looking for her missing relative, Khamsat Ts. 202. At about 2 p.on 11 December 2002 the three women arrived at the assembly hall in Gudermes where the congress was to take place. They chose a spot about 30-40 metres from the entrance, so as to be visible to the participants and the media. In order to get their message across they unfolded two homemade banners which read: “Give us back our sons”, “Stop abducting people” and “Stop the genocide”. 203. The applicants said that their presence was noticed by journalists who started to film them. A few people came up to them and asked them questions. One elderly man approached them and asked where they were from and wished them good luck. 204. After about five minutes a bus stopped nearby and about 25-30 policemen jumped out. They rushed at the women, threw their banners to the ground and destroyed them. Other policemen forced the women onto the bus, which took them to the Gudermes district department of the interior (ROVD). There they were put into a cell. Detained with them was the old man from Gudermes who had come up to them to express his sympathy and whose name they discovered was Khalid E. 205. The applicants said that their cell was extremely cold and dirty. The window was not glazed but covered with a metal grille and a steel sheet with holes, through which cold air passed. Most of the cell was occupied by a wooden bunk with one dirty blanket. There were also plastic bottles with urine and remains of food strewn over the floor and the bunk. The applicants described the smell in the cell as unbearable. 206. After about half an hour the applicants and Khalid E. were taken out of the cell one by one and searched. Their bags and clothes were also searched. Then an investigator questioned them about the picket and they signed the transcripts of their interviews. They were then returned to the cell. 207. At about 5 p.they were taken out of the cell and escorted to the Gudermes Town Court. However, half-way to the court building a policeman caught up with them and said that the head of the ROVD had ordered them to return. The four women and Khalid E. were then taken back to the same cell. 208. They started to bang on the door and demanded that they be kept separately from the man. They asked for their relatives to be notified of where they were. They also complained about the cold and dirt, but their complaints were ignored. The policeman on duty told them that they had no more blankets. The four women and Khalid E. spent the night in the cell, suffering from bitter cold. The first applicant said that during the night Khamsat Ts. and the fourteenth applicant, who were both over 60 years old, had suffered from cramps and that they had had to massage them and give them some heart medicine they found in their bags. 209. In the morning of 12 December 2002 the women again demanded to be kept separately from the man, to be transferred to a heated cell, to be allowed to notify their relatives and to be given access to a lawyer. The staff of the ROVD noted their demands but did not do anything. Later that day two young men were brought to the same cell. Both had visible marks on their heads and said that they had been beaten by the police in order to make them confess. The cell now had four female and three male occupants. 210. In the evening of 12 December 2002 the four women were taken out of the cell and taken to the temporary confinement ward (IVS). They were again searched and their belongings and medicines were taken from them. They were placed in a cell that was warm, but extremely dirty. There were several dirty mattresses and pillows and part of a blanket. There were also two buckets provided for use as toilets, which were emptied in the mornings. The guards told them that the door would remain locked during the night and that it was no use knocking. In the evening they were given some food and the guard told them that it had come from Khalid E., so the women guessed that it had been brought by his relatives. It was the first time in one and a half days that they had received any food. Later that night a guard brought them a loaf of bread and some hot water and said that it was the daily ration for four people. The women were appalled by such treatment and refused to accept it, declaring that they were on hunger strike. 211. Later that night Khamsat Ts.’s condition again worsened. She suffered from diabetes and heart disease and was in pain. The applicants called the guard, and some time later she was taken to a duty doctor who gave her some pills before returning her to the cell. The doctor promised to inform the head of the ward that she was unfit for detention, but she remained in the cell another day. 212. In the evening of 13 December 2002 the guards removed Khamsat Ts. from the cell and said that they would take her to hospital. The applicants were very worried about her, knowing that the curfew was already in place and that it was unlikely that there would be any doctors at the hospital in the evening. 213. During the night of 13 to 14 December 2002 the applicants were awoken by the sound of blows and the cries of a man who was asking not to be beaten. They were very frightened and could not help thinking of their missing relatives, who were probably also subjected to beatings and torture. The three applicants remained in the same cell until 15 December 2002, refusing to accept food. 214. On 15 December 2002 the first, fifth and fourteenth applicants were taken to the Gudermes Town Court. A lawyer invited by the NGO Memorial, which had been alerted by the applicants’ relatives, was also present. The judge invited them into the courtroom one by one and asked them about the circumstances of the picket and whether they had obstructed anyone’s passage or disturbed the public order. The applicants gave their account of the events and denied that they had created any disturbance. They also complained about the length and conditions of their detention. The first applicant submitted that the judge had orally agreed with them that their detention between 11 and 15 December 2002 had been unlawful and said that they would be released. She told them that the written decision would be issued later. 215. The applicants explained that they did not insist on obtaining copies of the decisions because they were exhausted and sick and wanted to get home as soon as possible. The first applicant was feeling unwell and her husband, who had been waiting for her outside the court, took her to the nearest hospital, Grozny no. 7, where she remained until 8 January 2003. According to a certificate issued by that hospital, she was diagnosed with a number of acute bronchial and gastric illnesses, anaemia and other health problems. 216. The applicants said that they obtained copies of the decisions issued on 15 December 2002 several days later. Identical decisions were issued in respect of the first, fifth and fourteenth applicants. The decisions stated that on 11 December 2002 each of them had participated in an unauthorised picket and had obstructed the holding of the congress of the Chechen people. Referring to section 1 of the Code of Administrative Offences (“Violation of the prescribed order governing the organisation or holding of a gathering, meeting, demonstration, march or picket”), the Gudermes Town Court sentenced each applicant to three days’ administrative detention. 217. The Government did not submit any comments on the applicants’ complaints in their first set of observations. In their second set, they informed the Court that, according to the Ministry of the Interior, the Gudermes temporary detention ward was situated in a separate building and contained 11 cells with capacity for 38 detainees. The ward was equipped with electric lights, sleeping room and central heating. Ventilation was provided by the windows. Persons of the opposite sex were detained separately. In cases of need, an ambulance could be called from the Gudermes district hospital. As to the applicants’ situation in December 2002, the registration logs of the administrative detainees and the record of administrative offences had been destroyed since the period they were required to be held in the archives was established by a ministerial decree of 2005 at three years. The Government did not submit any documents in support of these assertions. Subsequent proceedings 218. On 23 December 2002 the first and fifth applicants appealed against the decisions of the Gudermes Town Court. They argued that section 2 of the Code provided for up to fifteen days’ administrative detention only in cases where an unauthorised meeting had been held in the immediate vicinity of a nuclear energy facility. In all other cases the section prescribed only a fine. The applicants also denied that they had disturbed the holding of the congress or otherwise breached public order. The first and fifth applicants complained that their detention for four days had been unlawful and that they had been detained in inhuman conditions. In particular, they mentioned that they had had to share a cell with men, that the cell was very cold and they had received no warm blankets, that the only food they had received on 13 December 2002 was some hot water and a loaf of bread to be shared by four people. The applicants added that the conditions had led to health problems for all of them. They claimed RUB 200,000 each in damages from the Gudermes ROVD. 219. The fourteenth applicant did not appeal against the decision of 15 December 2002. 220. On 27 January 2003 the Chechnya Supreme Court reviewed the first and fifth applicants’ appeals. It overturned the decisions of 15 December 2002 in so far as they had sentenced the applicants to administrative arrest, owing to the absence of such a penalty in section 2 of the Code of Administrative Offences and sentenced each of them to a fine in the amount of five minimum monthly wages. Because they had already served the detention they were exempted from payment of the fines. The Supreme Court did not address the applicants’ complaints concerning the lawfulness and conditions of, or compensation for, their detention. 221. The first and fifth applicants tried to obtain supervisory review of the decision of 27 January 2003 and requested that their civil claims to the ROVD be reviewed. Their requests were turned down by the Chechnya Supreme Court.

A. Court proceedings concerning rein s tatement The applicant is a Russian Army colonel. In September 1998 he was removed from his post. On 2 October 1998 the applicant brought proceedings against his commanding officer claiming reinstatement, payment of salary and service-related benefits, and compensation of non-pecuniary damage sustained as a result of his removal. On 26 October 1998 the Military Court of Rostov Garrison (“the Garrison Court”) dismissed his claims; the judgment was upheld on appeal. In January 1999 a military disciplinary commission issued an appraisal report in respect of the applicant. The commission found that the applicant's performance was unsatisfactory. On this basis in March 1999 he was transferred from active military service to the reserve. On 20 April 1999 the applicant challenged the transfer in court, but to no avail. On 10 November 1999 the Garrison Court dismissed his claim; the judgment was upheld on appeal. On 27 April 2001 president of the Military Chamber of the Supreme Court of Russia granted the applicant's application for supervisory review and brought an extraordinary appeal against the above court decisions. On 22 May 2001 the Military Chamber of the Supreme Court quashed the impugned decisions and remitted the cases for fresh examination. On an unspecified date the Garrison Court joined the above cases. B. Judgments ordering reinstatement and payment of damages On 21 January 2002 the Garrison Court granted the applicant's claims in part. It quashed the respective decisions of the applicant's superior officers and the appraisal report, reinstated him in his former post and awarded him non-pecuniary damages in the amount of 1,000 Russian roubles (RUB), to be recovered from the Ministry of Defence, and RUB 500 to be recovered from the Chief of the Headquarters of the North-Caucasus Military Command. The claims for pecuniary damages were rejected. On 8 May 2002 the appeal court set aside the judgment in the part concerning rejection of the claims for pecuniary damages and required a new hearing. The remainder of the judgment was upheld. On 27 September 2002 the Garrison Court issued a writ of execution in respect of the part of the judgment that had entered into force and forwarded it to the bailiff service of the Oktyabrskiy District of Rostov ‑ on ‑ Don. On 30 January 2003 the applicant was reinstated in his post. The damages in the amount of RUB 1,500 awarded by the judgment of 21 January 2002 remained unpaid. On 19 June 2003 the Garrison Court granted the applicant's claims in part, awarding him RUB 650,510. However, on 11 February 2004 the appeal court overturned this judgment on procedural grounds and ordered the case for re-examination. On 8 April 2004 the Garrison Court granted most of the applicant's claims. The court awarded him RUB 776,247 covering his salary, legal expenses and various service-related benefits due for the period of his necessary absence from work, in particular, compensation for clothing, food ration, sanatoria treatment and a lump-sum premium for 1997. The court also found that the applicant's reinstatement ordered by the judgment of 21 January 2002 had been carried out with a significant delay, and that the applicant had not received RUB 1,500 awarded by the court in compensation of non-pecuniary damage. The applicant was awarded RUB 5,000 as compensation for the delayed enforcement. This judgment was upheld on appeal by the Military Court of North Caucasus Command on 4 August 2004. Execution of the judgments On 9 April 2004 the applicant received RUB 1,000 due to him under the decision of 21 January 2002. The award of RUB 500 remained unpaid. On 30 August and 1 November 2004 the applicant received the amounts awarded to him by the court judgment of 8 April 2004. The applicant brought proceedings claiming index-linking of the amounts paid to him with a delay. On 28 January 2005 the Garrison Court granted his claims in part, awarding him RUB 2,750 as inflation losses resulted from the delay in the enforcement of the judgments of 21 January 2002 and 8 April 2004. However, without giving any specific reasons the court rejected the applicant's claim in the part concerning the failure to pay him RUB 500. On 25 May 2005 the Military Court of North Caucasus Command upheld the judgment on appeal. On 19 July 2005 the applicant received the amount awarded to him by the judgment of 28 January 2005. It appears that the applicant has not received the award of RUB 500 to date.

6, 5

On 7 September 1992 the applicant was arrested and detained on remand on 9 September 1992. On 7 May 1993 the Zielona Góra Regional Court prolonged the applicant’s detention until 30 June 1993. On 29 June 1993 the same court prolonged the applicant’s detention on remand until 15 August 1993 on the grounds that there was a reasonable suspicion, supported by the evidence gathered so far in the proceedings, that he had committed a serious crime. Moreover, the applicant was requested to undergo further psychiatric examination. The court observed that there were no grounds on which to consider that the continued detention would entail for the applicant particular hardship, within the meaning of Article 218 of the Code of Criminal Procedure. On 30 July 1993 the applicant’s psychiatric examination was completed. On 4 August 1993 the court prolonged the applicant’s detention until 7 September 1993. On 6 September 1993 the Supreme Court prolonged the applicant’s detention until 31 December 1993. On 13 October 1993 experts from the Pruszków Institute of Psychiatry and Neurology submitted their report. On 21 October 1993 the prosecutor appointed an extended team of experts with a task of establishing whether the applicant had been suffering from a physical and mental disorder or disability at the time of the commission of the crime with which he had been charged. On 29 December 1993 the Supreme Court prolonged the applicant’s detention until 31 January 1994. On 31 January 1994 the bill of indictment against the applicant was lodged with the Zielona Góra Regional Court. The applicant was indicted for homicide. The first hearing before the Regional Court was held on 28 March 1994. The court heard the submissions of the applicant and examined witnesses J.and J.Ch. On 29 March 1994 the court heard evidence from expert J.and examined witnesses A., S., E.S., J.S., S., and W.S.. At the hearing of 30 March 1994 the court examined witnesses G.K., K., A.Ł., B., J.S., R.S., P.J., R.B., A.W., P.G. and E.K. Other witnesses summoned for that hearing, J.N., J.K., Z.B. and J.B., failed to attend. The next hearing was listed for 11 April 1994. On 11 April 1994 the court examined the witnesses J.Z., K.S., J.N., A., J.K., W., K.W. and G.S. Witnesses G., R., A.P., Z.B. and J.G. failed to comply with the summonses. At the next hearing, on 4 May 1994, the court heard evidence from witnessess G.and K.J. Witnesses J.G., R., S.P., A.P. and Z.P. failed to comply with the summonses. The court imposed a fine of 000.000 PLZ upon the witnesses R., A.P. and S.P., who had been duly summoned. On 27 May 1994 the court examined as witnesses R., A.J., R.K. and S.P. Witnesses A.P., Z.B., J.G., T.J. and were absent. At the next hearing on 9 August 1994 the court heard evidence from T.J., R., J.B. and A.R. Witnesses A.P., Z.B., J.G. and failed to attend the hearing. On 24 August 1994 the court examined A.P. as a witness. Witnesses , J.G. and Z.B. did not attend the hearing. On 2 September 1994 the court inspected the scene of crime. At the hearing held on 28 September 1994 the court examined a witness and expert H.G. An expert Z.S. did not comply with the summons as he suffered from a chronic illness. The experts from the Pruszków Institute of Psychiatry and Neurology informed the court that they would be able to attend the hearing only on 11 and 25 October or 17 November 1994 because they had hearings before other courts. The court fixed a date for the next hearing for 25 October 1994. On 25 October 1994 the court examined experts from the Pruszków Institute - , J.W. and T.G. The expert Z.S. did not appear. The court adjourned the hearing until 14 December 1994. On 6 December 1994 the applicant requested the Zielona Góra Regional Court to quash the detention order in view of his state of health which had seriously deteriorated as a result of his detention. He also submitted that he suffered from hypertension. On 14 December 1994, during a hearing before the Zielona Góra Regional Court, the court examined W.T. as a witness and an expert H.B. Certain discrepancies arose between the oral testimony of psychiatrists heard by the court and the submissions of the same experts in their written expert report concerning the applicant’s mental health. In view thereof, and at the applicant’s defendant’s request, the court decided that the applicant’s further psychiatric observation in the Psychiatric Department of Kraków University was necessary in order to establish whether he could be held criminally responsible. Subsequently the applicant underwent a psychiatric observation. On 23 December 1994 the Zielona Góra Regional Court dismissed the applicant’s request for release of 6 December 1994, finding that the evidence in the case-file sufficiently supported the suspicion against him. The court further had regard to the seriousness of the charges against the applicant. The court also took into account the medical certificate according to which the applicant could receive appropriate medical treatment in the prison. On 11 April 1995 the applicant lodged a further request for release with the Zielona Góra Regional Court, emphasising that he had been detained since September 1992. It was further stressed that, given that the investigations had been completed, there were no grounds on which to accept that his release would jeopardise the further taking of evidence. It was finally stated that there were no grounds for the applicant’s continuing detention. The Zielona Góra District Court dismissed the request on 19 April 1995, considering that the evidence gathered in the investigations sufficiently supported the suspicion that the applicant had committed a serious crime. The court further noted that there were no grounds on which to accept that the circumstances referred to in Article 218 of the Code of Criminal Procedure obtained in the applicant’s case. The applicant underwent psychiatric examinations from 29 to 31 May, from 1 to 3 June and on 21 June 1995. On 27 October 1995 the applicant again requested the Zielona Góra Regional Court to quash the detention order, arguing that he had been detained for three years and that the investigations had been completed. Therefore, the applicant’s release could not possibly jeopardise the proper course of the proceedings. It was further emphasised that the detention on remand was a preventive measure, which should not serve any punitive purposes. The length of the applicant’s detention on remand was such as to confer a punitive character on it. The request was dismissed by the Zielona Góra Regional Court on 2 November 1995 on grounds identical with those relied on by the same court in its decision of 19 April 1995. On 15 November 1995 the applicant lodged an appeal with the Poznań Court of Appeal against this decision. He argued that three years of detention on remand were incompatible with the very notion of justice, the more so as the court was not under a legal obligation to maintain his detention. He requested the appellate court to consider the imposition of more lenient preventive measures. He further submitted that, as a result of the excessive length of his detention, it had ceased to serve the purposes of a preventive measure and had acquired a punitive character. On 11 December 1995 and 5 January 1996 the applicant complained to the Minister of Justice about the length of the criminal proceedings in his case. He submitted that regardless of the findings made by the court in the proceedings on the merits of the criminal case against him, which had already lasted three years, he still enjoyed the presumption of innocence and should not be regarded as being guilty before a final judicial decision was given in this respect. In a letter of 2 January 1996 the President of the Zielona Góra Regional Court, in reply to the applicant’s complaint of 11 December 1995, forwarded to him by the Minister of Justice, stated that the case was complex, in particular since the court had to admit fresh evidence, including the expert opinion requested by the applicant. This opinion was being prepared. The court had several times urged the experts to expedite their work, but to no avail. The proceedings would progress as soon as the expert report was submitted. In his reply of 5 January 1996, the applicant stressed that the President of the Regional Court had failed to address his complaints about the excessive length of proceedings and, in particular, to explain reasons for which, since the last hearing held on 14 December 1994, there had been no progress in the case. He stated that since that date the court had been unable to do anything to speed up the preparation of the expert opinion. He submitted that his appeal against the Regional Court’s refusal to release him had not been transferred by that court to the Poznań Court of Appeal. On 27 January 1996 the applicant’ s father complained to the President of the Poznań Court of Appeal about the length of proceedings in the applicant’s case. In a letter of 30 January 1996 the President of the Zielona Góra Regional Court informed the applicant that the court had many times requested the experts to submit their report to the court, but to no avail. Under applicable laws, the court had no means at its disposal to oblige the experts to speed up their work, if the experts had provided justification of the delay in the submission of their report. The court had recently been informed that the report and the case-file would be returned to the court in February. On 29 February 1996 the applicant complained to the Minister of Justice about the excessive length of proceedings in his case. He submitted in particular that the Regional Court had failed to date to transmit his appeal against the decision of 2 November 1995 to the Court of Appeal. On 3 March 1996 the applicant complained to the Supreme Court about the excessive length of the criminal proceedings against him. On 13 March 1996 the Poznań Court of Appeal upheld the decision of 2 November 1995. The Court held that the lower court, though laconic in its reasoning, was right in considering that the applicant’s detention should not be lifted, in particular in the light of the evidence gathered in the case which pointed to his guilt. The court further stated that in the assessment of the applicant’s detention one fundamental argument should be kept in mind, namely that one of the purposes of the preventive measures was to keep in isolation dangerous offenders charged with serious crimes. The court further considered that the psychiatric expert opinion, which was being prepared, was necessary for the determination of the applicant’s criminal responsibility and that it was in the applicant’s interest that such a report be submitted to the court examining the merits of the case. The court further acknowledged that their significant length should be regarded as a shortcoming of the proceedings and that the court should undertake certain measures in order to expedite the experts’ work. However, the fact that the experts were slow in the preparation of their report could not in itself justify the applicant’s release. The court further considered that the circumstances referred to in Article 218 of the Code of Criminal Procedure did not obtain in the case. In a letter of 29 March 1996 the President of the Poznań Court of Appeal informed the applicant, in reply to his father’s complaint of 27 January 1996, that he had found no grounds on which to take any measures, within the framework of his administrative supervision over the lower courts, in order to accelerate the proceedings. He further stated that the applicant’s appeal against the decision of 2 November 1995 had been forwarded by the Regional Court to the Court of Appeal on 29 February 1996. On 1 April 1996 the court received three opinions, numbering 167 pages, prepared by the Psychiatry Department of Kraków University. On 6 May 1996 these opinions were sent to the Pruszków Psychiatry Institute for comments. On 10 May 1996 the applicant lodged a request for release with the Zielona Góra Regional Court. On 5 June 1996 the request was dismissed by the court. The Zielona Góra Regional Court found that the evidence gathered in the case sufficiently supported the suspicion that the applicant had committed a dangerous offence and that the circumstances referred to in Article 218 of the Code of Criminal Procedure did not obtain. The court further considered that, in the light of a recent medical certificate, the applicant, contrary to his submissions, could be treated in the prison hospital. On 16 June 1996 the applicant lodged an appeal against this decision, emphasising that his detention had lasted almost four years and that, consequently, it had ceased to serve any preventive purpose and should be regarded as serving a sentence. It was further submitted that there was no indication that, if released, the applicant would try to suppress evidence or otherwise jeopardise the proper course of the proceedings. The applicant finally referred to an expert opinion according to which he had suffered from brain damage and that there was a suspicion of a certain progressive illness. On 16 July 1996, upon the applicant appeal, the Poznań Court of Appeal upheld the decision of 5 June 1996. The court noted that the applicant was accused of a serious crime and that the evidence, the full assessment of which would be made by the court examining the case on the merits, and in particular the evidence of four witnesses, R., A.P., G.and E.S., pointed out to his guilt. The court further observed that the proceedings remained pending exclusively as a result of the fact that the applicant had to undergo psychiatric examinations, which were necessary for the case to progress and which were in the applicant’s interest. The court finally noted that the applicant suffered from hypertension which could be treated by the prison medical services. On 2 August 1996 the Pruszków Institute submitted their comments on the expert opinions of Kraków University to the court. On 7 August 1996 the Zielona Góra Regional Court lodged a request with the Supreme Court under Article 222 § 4 of the Code of Criminal Procedure, submitting that the applicant should be maintained in detention on remand until 31 December 1996. The court submitted that all the evidence relevant to the case had been taken, the only exception being that relating to the applicant’s mental state tempore criminis . The court had at its disposal two contradictory psychiatric expert opinions in this respect, and, consequently, it requested that a third one be prepared to elucidate the discrepancies between the contradictory assessments of the applicant’s mental state. Despite their declaration, the experts had failed to submit the report to the court by July 1996. Therefore the applicant’s detention should be maintained. On 19 August 1996 the applicant requested the Supreme Court to dismiss the motion of the Zielona Góra Regional Court. On 24 September 1996 the Supreme Court refused to entertain the request of the Regional Court. The Court referred to Article 10 (a) of the Interim Law of 1 December 1995 and considered that in the light of this provision the Regional Court was not obliged to submit the request for the prolongation of the applicant’s detention if the period of the detention so prolonged would end before 1 January 1997. On 24 October 1996 the applicant requested again to be released, arguing in particular that he had already been detained for four years. He submitted that his excessively long detention did not have any basis in the applicable laws. He further referred to his health, which had been deteriorating as the medical care provided by the prison medical services was inadequate. The hearing fixed for 19 November 1996 was adjourned as the experts of the Kraków University informed the court that they would be unable to attend it. By a decision of 21 November 1996 the applicant’s request of 24 October 1996 was dismissed by the Zielona Góra Regional Court. The court considered that the need to maintain the detention still persisted since there was a reasonable suspicion that the applicant had committed a serious crime which carried a risk of a long-term imprisonment. The court also stated that in the applicant’s case the conditions for release referred to in Article 218 of the Code of Criminal Procedure were not satisfied. At the hearing on 10 December 1996 the Court examined experts , J.W., T.G., H., E., J.H., J.G., Ju.G. and J.On 13 December 1996 the parties presented their final conclusions. On 16 December 1996 the Regional Court in Zielona Góra convicted the applicant of manslaughter, acquitted him of other charges and sentenced him to fourteen years of imprisonment. On 19 March 1997 the Regional Court dismissed the applicant’s request for release. On 30 June 1997 the applicant and on 2 July 1997 the prosecutor lodged their appeals against the judgment on the merits with the Poznań Court of Appeal. On 20 August 1997 the Court of Appeal dismissed the applicant’s appeal against the decision of 19 March 1997. On 28 October 1997 the Poznań Court of Appeal upheld the judgment of 16 December 1996. On 29 December 1997 the applicant lodged a cassation appeal with the Supreme Court. In reply, on 18 February 1998 the Poznań Prosecutor of Appeal requested the Supreme Court to dismiss this appeal. On 30 July 1998 the Poznań Court of Appeal refused to stay the enforcement of the sentence. On 6 December 1999 the Supreme Court dismissed the applicant’s cassation appeal, considering that it was manifestly ill-founded.

The applicant is a judge at the Eisenstadt Regional Court. In July 1997 he made a study visit to the Commission of the European Union in Brussels. The Federal Ministry of Justice paid his travel expenses and granted the applicant two weeks’ special leave, in addition to which he took two weeks of his annual leave. On 9 July 1997 the Federal Minister of Justice informed the applicant on his return that it would not reimburse any of the additional expenses he had claimed in the meantime on 20 June 1997. On 5 September 1997 the applicant formally requested the reimbursement of further costs, incurred during the study visit, in particular the costs for his accommodation in the amount of Austrian schillings 17,699.75 (ATS - 1,284.11 euros (EUR)), and submitted additional records. On 20 March 1998 the Federal Minister dismissed the applicant’s request on the grounds that the trip had not been an official journey – this having been made clear by the fact that the applicant had taken some annual leave during that period. On 3 June 1998 the applicant filed a complaint with the Administrative Court. He submitted that the Federal Minister had interpreted the relevant law incorrectly and that if he had properly assessed the evidence he would have concluded that the study visit to Brussels had to be treated as an official journey. On 30 January 2002 the Administrative Court quashed the Federal Minister’s decision finding that the President of the Vienna Court of Appeal had been the authority competent to decide on the request for reimbursement at first instance, rather than the Federal Minister. Thereupon, the matter was transferred to the President of the Vienna Court of Appeal who requested the applicant and the Federal Minister to submit explanations regarding the study visit. On 17 September 2002 the applicant lodged a complaint ( Säumnis ­ beschwerde ) with the Administrative Court against the alleged failure of the President of the Court of Appeal to decide on his request within the statutory six-month time-limit. On 23 October 2002 the Administrative Court rejected the complaint because the applicant had not made a prior request under Section 73 of the General Administrative Procedure Act for jurisdiction to be transferred to the Federal Minister of Justice as the authority responsible for hearing appeals. On 29 November 2002 the President of the Vienna Court of Appeal dismissed the applicant’s request for reimbursement of the costs of his accommodation in Brussels on the grounds that the applicant had not been given instructions for an official journey and had not performed any official duties during his stay in Brussels. Therefore he was not entitled to reimbursement of his costs. On an unspecified date the applicant appealed against that decision to the Federal Minister of Justice. On 4 February 2003 the Federal Minister dismissed the applicant’s appeal, confirming the findings in the first-instance decision. On 14 April 2003 the applicant filed a complaint with the Administrative Court against the Federal Minister’s decision. He submitted that while acknowledging that his trip had been in the interest of his official duties ( dienstliches Interesse ), the Minister had incorrectly assumed that the applicant’s study visit was not to be treated as an official journey. The applicant did not ask for a hearing before the Administrative Court. On 24 February 2006 the Administrative Court dismissed the applicant’s complaint, finding that the Minister had correctly assessed the evidence before him and had correctly concluded that the applicant’s study trip had not been treated as an official journey.

The first applicant was born in 1965 and lives in Athens. The second applicant was born in 1974 and lives in Piraeus. They were represented by Mr Ktistakis, a lawyer practising in Athens. The Government were represented by their Agent’s delegate, Mrs G. Papadaki, Advisor at the State Legal Council. The facts of the case, as submitted by the parties, may be summarised as follows. 5 . The Hellenic Capital Market Commission (“the Commission”) is an independent administrative body empowered to supervise compliance with stock exchange legislation. It decided to investigate trading in the shares of the K. company, listed on the Athens stock market, which had been conducted during the periods from 1 January to 17 July 2003, 18 July to 26 September 2003, 29 September 2003 to 19 March 2004, and 7 September to 22 October 2004. The Commission concluded that there was evidence that individuals linked to a limited liability company, “G.” (“the company”), had entered into transactions organized for the purpose (“ κατάρτιση μεθοδευμένων συναλλαγών ”) of artificially determining the value and marketability of the shares of the company K., with the consequence of disseminating inaccurate and misleading information within the public of investors. Based on the volume of the transactions, on the time when they had occurred and on the identity of the persons who had entered into them, the Commission concluded that the transactions had had an artificial effect on the price and marketability of the company’s securities during the periods in which their price had risen, that is to say from 1 January to 17 July 2003 and from 10 October 2003 to 28 April 2004. The Commission also concluded that the first applicant, the majority shareholder, president and chief executive officer of the company, acting as a coordinator in collaboration with the second applicant, an employee in that company, had participated in the manipulation of the price and marketability of K.’s shares. They had entered into transactions on their own behalf, but also on behalf of clients of the company. More specifically, they had: a) pre-arranged trading: (i) by conducting, on their own behalf and on behalf of clients of the company, purchases and sales through the same or several stockbroker companies, mostly having as counterparties people participating in the scheme; (ii) by placing matched orders; (iii) by confirming and/or recommending to the counterparty stockbroker companies the artificial fixing and trading of K.’s shares, as proven by a sample check of telephone archives; b) done substantial trading at the closure of the market, part of which had been conducted between the implicated persons, in order to artificially determine the price and marketability of K.’s shares. On 19 August 2005 the Commission sent letters to the applicants informing them about the evidence collected by the investigation. They were requested to express their views and provide any relevant documents. On 27 September 2005 the applicants sent their replies. On 2 October 2007 the Board of the Commission found both applicants guilty of violating the first sentence of Article 72 § 2 of Law no. 1969/1991. It issued decision no. 7/447/2007 against the first applicant, fining him 100,000 euros (EUR), and decision no. 8/447/10/2007 against the second applicant, fining him EUR 60,000. The applicants lodged appeals with the Athens Administrative Court of Appeal against the Commission’s decisions. On 31 October 2008 their appeals were granted by decisions nos. 3289/2008 and 3290/2008. The appellate court considered that the first sentence of Article 72 § 2 of Law no. 1969/1991 could not be infringed by entering into transactions, unlike the second sentence of the same Article, even though the latter referred only to professional facilitators. Therefore, the transactions which the applicants were accused of having carried out did not fall within the scope of the first sentence of Article 72 § 2 of Law no. 1969/1991, as they could not be regarded as publication or diffusion of inexact or misleading information, even if they had aimed at manipulating the price of shares and had resulted in artificially influencing it. On 8 April 2009 the Commission lodged appeals on points of law against the decisions granting the applicants’ appeals, arguing that the Athens Court of Appeal had erroneously interpreted the impugned legislative provision. The fourth Section of the Supreme Administrative Court, composed of a panel of five judges, issued decisions nos. 1679/2012 and 1681/2012, referring the case to a seven-member panel, due to its importance and to the existence of conflicting case-law (see paragraphs 20 ‑ 21 below). 12 . On 15 January 2013 the Supreme Administrative Court issued judgments nos. 109/2013 and 111/2013, granting the appeals on points of law lodged by the Commission and quashing judgments nos. 3289/2008 and 3290/2008 of the Athens Administrative Court of Appeal. In particular, the Supreme Administrative Court held that Article 72, the purpose of which was to secure the smooth running of the market and the protection of investors, did not specify particular forms of disseminating inexact or misleading information that could lead to artificially influencing the price of shares. If those transactions had therefore been entered into with the intention of providing false information concerning the price and marketability of securities so as not to reflect their true value, and had resulted in misleading investors as regards elements that could influence their decision-making, then the performance of those transactions would be in breach of the provision. The transactions entered into had constituted dissemination of inexact or misleading information, given that the artificially formulated data concerning the price and marketability of the shares had been published, by virtue of the relevant legislation, in the daily stock exchange official list and in the electronic record of transactions. In addition, the above-mentioned conclusion was reinforced by the second sentence of Article 72 § 2, which provided that professional facilitators, that is to say those who on a daily basis enter into many transactions on behalf of others, would not be sanctioned unless they knew or ought to have known that by entering into those transactions, they had been attempting to disseminate inexact or misleading information. The conclusions mentioned above were not affected by the fact that in a subsequent law, no. 3340/2005, the ways in which manipulation of the market could be achieved were specified. Those included both entering into transactions and disseminating inexact or misleading information as two distinct ways of manipulating the market. In fact, Law no. 3340/2005 had merely specified the terms and conditions of an infringement of the said provision, in compliance with Directive 2003/6/EC. The Supreme Administrative Court additionally held that the above-mentioned interpretation of Article 72 § 2 merely clarified the scope of application of the provision. Those who were involved in the stock market and showed the usual diligence could have foreseen that entering into transactions with the features mentioned above would be considered as having risked misleading investors. They could also have anticipated that sanctions would be imposed on them by virtue of Article 72 § Furthermore, the applicants had not claimed that the Supreme Administrative Court or the administrative courts in general had interpreted the provision differently. Having regard to those considerations, the applicants had erroneously claimed that the above-mentioned interpretation of the impugned provision had violated Article 7 of the Convention, which applied not only to criminal sanctions but also to other sanctions that emulated “penalties” based on certain criteria. 14 . A minority of two judges disagreed. In particular, they argued that the literal meaning of the first sentence of Article 72 § 2 did not include entering into transactions as a way of disseminating inexact or misleading information, irrespective of whether the intention behind the performance of those transactions had been to mislead investors. Otherwise, there would have been no need to distinguish, in Article 7 of Law no. 3340/2005, between the dissemination of information and the performance of transactions, as two different ways of manipulating the market. Subsequently, the Supreme Administrative Court remitted the cases to the Athens Administrative Court of Appeal. The latter issued new judgments nos. 4704/2013 and 1132/2014, upholding the fine imposed by the Commission on the first applicant and reducing the fine imposed on the second applicant to EUR 20,000. 16 . In the meantime, the first applicant was charged with breaching Article 34 of Law no. 3632/1928. By decision no. 2655/2007 of the Indictment Division of the Athens Court of First Instance Athens Council of Magistrates (“the Indictment Division”) issued on 7 September 2007 he was acquitted of all charges. In particular, the Indictment Division held that it did not follow from the file that the applicant had attempted to influence the value of the securities of K. by using fraudulent methods and that during the period in issue the shares’ value had dropped by 46%. RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law and practice Law no. 1969/1991 17 . Article 72 § 2 of Law no. 1969/1991, as replaced by Article 96 § 1 of Law no. 2533/1997 and applicable at the time, provided as follows: “A fine of up to five hundred million drachmas (500 000 000) [EUR 1,467,349.99] shall be imposed by the Capital Market Commission on natural or legal persons who publish or disseminate in any way inaccurate or misleading information regarding securities to be listed or already listed on an official stock exchange that by its nature may affect the price of or dealings in those securities. Persons who act professionally as facilitators shall not have administrative sanctions imposed on them on the basis of the previous sentence simply for entering into transactions on those securities, unless the facilitator knew or ought to have known that by entering into the transaction, he was attempting to disseminate false or inexact information or if he was contributing in any additional way to facilitating those transactions. This provision shall also apply to members of the board of directors of companies applying for admission of their shares to a recognised stock exchange, where inaccurate or misleading information is contained in the listing particulars required for the purposes of the above-mentioned admission or is published or disseminated in any way”. Law no. 3340/2005 18 . By Article 32 of Law no. 3340/2005, Article 72 § 2 of Law no. 1969/1991 was repealed, but it remained in force for acts that had been committed prior to its entry into force. In addition, Article 7 of Law no. 3340/2005, transposing Directive 2003/6/EC of the European Parliament and of the Council on insider dealing and market manipulation (market abuse), provides as follows: “Market manipulation shall be prohibited. ‘Market manipulation’ means: (a) transactions or orders to trade which give, or are likely to give, false or misleading signals as to the supply of, demand for or price of financial instruments, or which secure, by a person, or persons acting in collaboration, the price of one or several financial instruments at an abnormal or artificial level, unless the person who entered into the transactions or the person on behalf of whom the transactions have been entered into or the person who issued the orders to trade establishes that these transactions were entered into or that he issued the orders for the transactions for legitimate reasons and that these transactions or orders to trade conform to accepted market practices on the regulated market concerned; (b) transactions or orders to trade which are combined with/constitute fictitious devices or any other contrivance; (c) dissemination of information through the media, including the Internet, or by any other means, which gives, or is likely to give, false or misleading signals as to financial instruments, including the dissemination of rumours and false or misleading news, where the person who carried out the dissemination knew, or ought to have known, that the rumours or information was false or misleading ...” Law no. 3632/1928 Article 34 subparagraph a) of Law no. 3632/1928 provided at the material time: “Whosoever acts in the following way shall be punished by imprisonment and pecuniary sanction ... or by either of those penalties: a) whosoever, in order to receive unlawful gain, knowingly uses fraudulent means misleading others so as to affect the prices in the stock market; ...” Domestic case-law 20 . According to certain judgments issued in 2002 and 2003 by administrative courts of first instance, the adoption of the first sentence of Article 72 § 2 proved that the legislator wanted to secure the market’s credibility in order to effectively protect investors. If someone entered into transactions in order to affect the price of securities, his or her action could be considered as disseminating false or inaccurate information that could affect the price and marketability of those securities, as the prearranged transactions would be published and other investors would take that information as a basis for choosing to buy or sell securities. Therefore, conducting a large volume of pre-arranged trading was in breach of the first sentence of Article 72 § 2 (judgments nos. 10698/2002, 9294/2002, 14735/2003 of the Athens Administrative Court of First Instance, and judgments nos. 1413/2003 and 244/2003 of the Piraeus Administrative Court of First Instance). 21 . On 30 June 2006 the Supreme Administrative Court issued judgment no. 1898/2006, by which it held that the first sentence of Article 72 § 2 could not be breached by conducting transactions, as that case was only provided for by law in the second sentence concerning professional facilitators. European UNION law 22 . The relevant parts of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) read as follows: “‘Market manipulation’ shall mean: (a) transactions or orders to trade: - which give, or are likely to give, false or misleading signals as to the supply of, demand for or price of financial instruments, or - which secure, by a person, or persons acting in collaboration, the price of one or several financial instruments at an abnormal or artificial level, unless the person who entered into the transactions or issued the orders to trade establishes that his reasons for so doing are legitimate and that these transactions or orders to trade conform to accepted market practices on the regulated market concerned; (b) transactions or orders to trade which employ fictitious devices or any other form of deception or contrivance; (c) dissemination of information through the media, including the Internet, or by any other means, which gives, or is likely to give, false or misleading signals as to financial instruments, including the dissemination of rumours and false or misleading news, where the person who made the dissemination knew, or ought to have known, that the information was false or misleading. In respect of journalists when they act in their professional capacity such dissemination of information is to be assessed, without prejudice to Article 11, taking into account the rules governing their profession, unless those persons derive, directly or indirectly, an advantage or profits from the dissemination of the information in question. In particular, the following instances are derived from the core definition given in points (a), (b) and (c) above: - conduct by a person, or persons acting in collaboration, to secure a dominant position over the supply of or demand for a financial instrument which has the effect of fixing, directly or indirectly, purchase or sale prices or creating other unfair trading conditions, - the buying or selling of financial instruments at the close of the market with the effect of misleading investors acting on the basis of closing prices, - taking advantage of occasional or regular access to the traditional or electronic media by voicing an opinion about a financial instrument (or indirectly about its issuer) while having previously taken positions on that financial instrument and profiting subsequently from the impact of the opinions voiced on the price of that instrument, without having simultaneously disclosed that conflict of interest to the public in a proper and effective way. The definitions of market manipulation shall be adapted so as to ensure that new patterns of activity that in practice constitute market manipulation can be included.”

P1-1, 13, 6

They obtained binding judicial decisions ordering the State authorities to provide them with housing or various services in kind, but the enforcement of those judgments was considerably delayed. Some of the judgments remain unenforced to date. The applicants’ individual circumstances are detailed below. A. Delayed enforcement of the judgments in the applicants’ favour The case of Mr Gerasimov (application no. 29920/05 lodged on 26 July 2005) 9 . The applicant, Mr Mikhail Yefimovich Gerasimov, was born on 30 June 1927 and lived in Vladivostok, Primorskiy Region. On 3 September 2002 the Leninskiy District Court of Vladivostok ordered the town administration to conclude a contract for utilities with the applicant before 1 December 2002, and to repair the basement of the building he lived in in accordance with the sanitary regulations before the cold season. The judgment became final on 14 September 2002. On 14 March and 17 May 2005 a commission composed of several members of the housing maintenance authority and residents inspected the basement and found it up to standard. On the 27 July 2005 the bailiffs closed the enforcement proceedings in respect of the judgment, finding that the basement had been repaired as required. On 19 July 2007 the Leninskiy District Court of Vladivostok clarified the judgment of 3 September 2002 with regard to the utilities to be supplied. The court specified that the applicant’s apartment had to be provided with heating, hot and cold water, wastewater services and a cleaning service for the communal area. The enforcement proceedings were resumed. On an unspecified date, the town administration provided the applicant with a draft contract for the utilities but the applicant refused to sign it without giving a reason. Considering their obligations under the judgment of 3 September 2002 to be fulfilled, the town administration requested that the enforcement proceedings be closed. The bailiffs refused. 16 . On 17 October 2007 the Frunzenskiy District Court of Vladivostok dismissed the administration’s complaint against the bailiffs’ refusal to close the enforcement proceedings. 17 . On 11 December 2007 the Primorskiy Regional Court granted the administration’s appeal, finding that the latter had taken all possible measures to comply with the judgment of 3 September 2002. The bailiffs accordingly closed the enforcement proceedings on 21 January 2008. The case of Mr Shmakov (application no. 3553/06 lodged on 28 December 2005) The applicant, Mr Andrey Gennadyevich Shmakov, was born on 30 October 1960 and lives in Yakutsk, Republic of Sakha (Yakutiya). On 10 January 2002 the Yakutsk Town Court ordered the town administration to provide the applicant and his family with appropriate housing in Yakutsk, in accordance with the law, in lieu of his house, which had been demolished by the authorities in 2001. The judgment became final on 21 January 2002. As the judgment had still not been enforced, in 2004 the applicant unsuccessfully sought a court order for the seizure of an apartment in a new block which had been built on the plot of land on which his former house had stood. On 7 July 2004 the Yakutsk Town Court specified that the judgment had to be enforced by the mayor’s office of Yakutsk. 23 . On 3 March 2010 the Yakutsk Town Court modified the method of enforcement, specifying that the judgment could be enforced by the payment of 1,653,264 Russian roubles (RUB) by the town administration. The applicant did not appeal against that judgment and received the monetary award on 1 July 2010. The case of Ms Baranova (application no. 18876/10 lodged on 13 March 2010) The applicant, Ms Lyubov Mikaylovna Baranova, was born on 17 April 1960 and lives in Bazarniy Syzgan, Ulyanovsk Region. On 14 April 2009 the Bazarnosyzganskiy District Court of the Ulyanovsk Region ordered the municipal administration to provide heating supply to her flat. On 26 May 2009 the Ulyanovsk Regional Court upheld that judgment on appeal. In a judgment of 16 July 2009 the Inzenskiy District Court of the Ulyanovsk Region specified possible ways of enforcing the judgment of 14 April 2009, namely, by ensuring either a hot water or natural gas supply for heating purposes. On 23 March 2010 an individual gas heating device was installed in the applicant’s flat. On 14 July 2010 the bailiffs closed the enforcement proceedings on the ground that the respondent authority had properly complied with the judgment of 14 April 2009. The case of Ms Kostyleva (application no. 61186/10 lodged on 4 October 2010) The applicant, Ms Tatyana Salikhzanovna Kostyleva, was born on 13 September 1960 and lives in Syktyvkar, Republic of Komi. 29 . On 2 October 2000 the Syktyvkar Town Court ordered the town administration to renovate the building in which the applicant held a flat under a social tenancy agreement. The judgment became final on 10 November 2000 (“the first judgment”). On 1 December 2000 the bailiffs commenced the enforcement proceedings. The building has at times been included in the town’s plans to renovate municipal housing but the repairs have never been carried out owing to a lack of funds and a shortage of temporary housing facilities where residents could be relocated during the renovation. 31 . On 20 July 2009 the Syktyvkar Town Court found that the applicant was still living in unsuitable conditions and ordered the town administration to provide her and her family with comfortable housing of at least 8 sq. On 5 August 2009 the judgment became final (“the second judgment”) and on 12 August 2009 the bailiffs started the enforcement proceedings. 32 . On 10 February 2010 the Syktyvkar Town Court dismissed the authorities’ request for a stay on the enforcement of the second judgment, considering that such a course of action would endanger the applicant’s and her family’s life and health. The bailiffs’ made repeated, albeit unsuccessful attempts to secure the enforcement of the judgment by the town administration, including by warning the head of administration of his criminal liability under Article 315 of the Criminal Code. 33 . Neither the first nor the second judgment in the applicant’s favour has been enforced to date. According to the latest information received by the Court, she was still living in the same building. On the evening of 14 May 2012 there was an electrical short circuit in the communal area on the first floor, provoking a smoke emission in the building. Meanwhile, the competent authorities continued the enforcement proceedings. After the communication of the present application to the Russian Government, the bailiffs requested the Syktyvkar Town Court on 23 May 2012 to provide them with a duplicate of the writ of execution in respect of the first judgment, which had been lost shortly after its delivery. On 27 June 2012 the court ordered a duplicate of the writ of execution to be delivered and the bailiffs resumed the enforcement proceedings on 13 September 2012. On that date the bailiff of the Inter-District Division for Special Enforcement Procedures in the Komi Republic ( Межрайонный отдел судебных приставов по особым исполнительным производствам Управления Федеральной службы судебных приставов по Республике Коми ) decided as follows: “To initiate enforcement proceedings no. 10594/12/22/11 [in respect of the Syktyvkar Town Administration]. To set a time-limit of five days for the debtor’s voluntary compliance with the requirements provided for in the writ of execution (section 30(12) of the Federal Law ‘On enforcement proceedings’). To warn the debtor that it will be liable to pay an enforcement fee of RUB 5,000 in the event of non-compliance within the time-limit set and failure to produce evidence that enforcement is impossible on account of extraordinary and unavoidable circumstances. In the event of extraordinary and objectively unavoidable circumstances and other unexpected and insurmountable obstacles making voluntary enforcement impossible, the debtor is requested to inform the bailiff accordingly within the time-limit set for voluntary compliance. To warn the debtor that under section 6 of Federal Law no. 229-FZ of 2 October 2007 on enforcement proceedings the requirements of the bailiff are binding on all State authorities, local authorities, individuals and organisations and must be rigorously complied with throughout the territory of the <COUNTRY>. To warn the debtor that under section 105(2) of Federal Law no. 229-FZ of 2 October 2007 on enforcement proceedings the bailiff may impose a fine provided for by Article 15 of the Code of Administrative Offences on a debtor who does not fulfil, within a new time-limit, the requirements set out in the writ of execution. To warn the debtor that under sections 116 and 117 of Federal Law no. 229-FZ of 2 October 2007 on enforcement proceedings the expenses related to the enforcement proceedings are to be paid back by the debtor to the federal budget, the creditor and anyone else who incurred those expenses. To warn the debtor that State officials may be prosecuted under Article 315 of the Criminal Code of the <COUNTRY> for non-enforcement of a judicial decision. ... ” 35 . On 2 August 2012 the bailiff was informed by the Town Administration that the enforcement of the judgment was impossible owing to a lack of available flats. On 10 October 2012 the bailiff informed the applicant that the enforcement proceedings in respect of the second judgment were still pending along with 309 other similar judgments against the town administration. The bailiff noted that the delay in enforcement could be explained, in particular, by the high number of judgments to be enforced, the lack of available flats and insufficient funding allocated for the building of new flats. The enforcement proceedings referred to by the bailiffs in the applicant’s case included compulsory requests for the allocation of flats, the inclusion of additional funds in the budget, the identification of available housing and the seizure of available flats with a view to their allocation in accordance with the waiting list. The bailiff also informed the applicant that she was no. 39 on the waiting list. 37 . On 11 January 2013 the bailiff warned the head of the town administration about criminal liability under Article 315 of the Criminal Code for non-enforcement of a judgment. According to the latest information, the applicant had moved up to no. 27 on the waiting list. The case of Mr Starostenkov (application no. 21176/11 lodged on 21 February 2011) The applicant, Mr Yuriy Vasilyevich Starostenkov, was born on 8 June 1954 and lives in Smolensk. A retired police officer, he was assigned to life-long disability category two in 1993 on account of injuries sustained during his service. On 3 July 2008 the Velizhskiy District Court of the Smolensk Region upheld the applicant’s right to be provided with a car for rehabilitation purposes and ordered the Department for Social Development of the Smolensk Region to ensure he was provided with one. This judgment became final on 18 July 2008. On 2 September 2008 the court supplemented the judgment of 3 July 2008, specifying that the applicant’s right to a car might be secured either at the expense of the regional budget or by informing the Federal Health Agency of his needs. However, the judgment was not enforced. 42 . After the communication of the present application to the Russian Government, on 19 June 2012 the bailiff imposed a fine of RUB 30,000 on the debtor authority in accordance with Article 15 of the Code of Administrative Offences. On 7 August 2012 the bailiff’s decision was quashed by the Leninskiy District Court of Smolensk on the ground that the debtor authority’s act did not amount to an administrative offence. 43 . On 2 October 2012 the bailiff warned the head of the debtor authority about criminal liability under Article 315 of the Criminal Code for non-enforcement of a judgment. 44 . On 23 November 2012 the Governor of the Smolensk Region issued Order no. 1695- р/адм allocating RUB 354,900 for the purchase of a car for the applicant. According to an estimate issued on 18 October 2012 by the Department for Social Development those funds would cover the purchase of a car (a Lada Kalina 11173 (RUB 298,900)) and special hand control equipment (RUB 56,000). On 24 December 2012 the applicant received a Lada 212140 without any special hand control equipment. On 26 December 2012 the enforcement proceedings were closed. The case of Mr Zakharchenko (application no. 36112/11 lodged on 24 May 2011) The applicant, Mr Anatoliy Arturovich Zakharchenko, was born on 4 September 1966 and lives in Saint Petersburg. The applicant is a military serviceman. On 30 November 2006 the Pushkin Garrison Military Court ordered the Commandant of military unit no. 3526 to provide, as a matter of priority, the applicant and his family with housing in the geographical area of his military service in accordance with the law in force. The judgment became final on 16 December 2006 but was not enforced. After the communication of the present application to the Russian Government on 14 September 2012, the Housing Commission allocated a flat located in the Saint-Petersburg suburbs to the applicant. On 1 October 2012 the applicant was provided with that flat and on 1 February 2013 concluded a social tenancy contract with the authorities. The case of Ms Troshina (application no. 36426/11 lodged on 11 May 2011) The applicant, Ms Marina Yevgenyevna Troshina, was born on 14 July 1961 and lives in Moscow. On 13 April 2007 the Ostankinskiy District Court of Moscow ordered the Moscow Regional Office of the Federal Real Estate Cadastral Agency ( Управление Федерального агентства кадастра объектов недвижимости по Московской области ) to consider a request by the applicant dated 29 December 2005 by which she had requested data from the land register in respect of a plot of land located in the village of Polushkino, Odintsovso District, Moscow Region (cadastral no. 50:20:13:7:2:13). The judgment became final on 4 May 2007 and the enforcement proceedings were brought on an unspecified date. However, the enforcement of the judgment was delayed. On 8 February 2010 the Russian Ministry for Economic Development issued Order no. P/41 for the reorganisation of the defendant authority and its incorporation into the Moscow Regional Directorate of the Federal Registration Agency. The relevant powers were later conferred to the Federal State Agency “Cadastral Chamber” for the Moscow Region ( Федеральное государственное учреждение «Кадастровая палата» по Московской области - “the Moscow Region Cadastral Chamber”). On 22 March 2011 the Ostankinskiy District Court granted the applicant’s request for clarification on how the enforcement would be carried out. It specified that the judgment had to be executed by the Moscow Regional Directorate for State Registration, Cadastre and Cartography ( Управление Федеральной службы государственной регистрации, кадастра и картографии - “the Directorate”) as successor to the respondent authority under the judgment of 13 April 2007. On 30 September 2011 the same court dismissed the Directorate’s request for appointment of the Moscow Cadastral Chamber as successor to the respondent authority under the judgment of 13 April 2007. On 2 December 2011 the Directorate requested the Moscow Cadastral Chamber to provide the data required by the judgment. On 15 December 2011 the latter informed the Directorate that the register contained no information about the plot of land concerned and recommended that the applicant seek its registration by the competent authority of the Odintsovo district. On 23 December 2011 that information was sent to the applicant. 55 . On 26 December 2011 the bailiffs closed the enforcement proceedings. On 20 March 2012 the Meshchanskiy District Court of Moscow dismissed the applicant’s complaint against the bailiffs’ decision, considering that the judgment of 13 April 2007 had been fully enforced. The case of Ms Ilnitskaya (application no. 40841/11 lodged on 15 June 2011) The applicant, Ms Natalya Vasilyevna Ilnitskaya, was born on 1 September 1961 and lives in Shikhany, Saratov Region. She is a former member of the Russian army. On 24 November 2008 the Volsk District Court of the Saratov Region upheld her right to a housing voucher. The judgment became final on 9 December 2008 but was only enforced on 15 February 2011 when a housing voucher issued on 24 February 2010 (no. 672764) was processed with a view to purchasing a flat in Volsk, Saratov Region. The case of Mr Grinko (application no. 45381/11 lodged on 25 July 2011) The applicant, Mr Aleksey Alekseyevich Grinko, was born on 25 July 1978 and lives in Vatutinki, Moscow Region. He is a military serviceman. On 8 December 2006 the Naro-Fominskiy Garrison Military Court ordered the commandant of military unit no. 72064 to grant the applicant priority housing in accordance with the law in force. The judgment became final on 25 December 2006 but was not enforced. The bailiffs brought the enforcement proceedings on 29 June 2009 but their repeated requests to the respondent authorities did not result in any action being taken. On 22 February 2011 the Naro-Fominskiy Garrison Military Court supplemented the judgment, specifying that it had to be enforced by the Housing Department of the Russian Ministry of Defence ( Департамент жилищного обеспечения Министерства обороны Российской Федерации – “the Housing Department”). After the communication of the present application to the Russian Government, on 14 May 2012, the competent bailiff addressed the Minister of Defence with a view to bringing the officials responsible to administrative responsibility. 63 . On 23 May 2012 the bailiff of the Inter-District Division for Special Enforcement Procedures in Moscow ( Межрайонный отдел судебных приставов по особым исполнительным производствам Управления Федеральной службы судебных приставов по Mocкве ) warned the head of the Housing Department that she could face criminal liability under Article 315 of the Criminal Code for non-enforcement of a judgment. On 12 June, 12 July and 24 October 2012 the bailiffs again requested the debtor to comply with the judgment. On 22 June 2012 the bailiffs of the Moscow Special Operational Division ( Специализированный отдел оперативного дежурства УФССП России по Москве ) appeared in person to summon the head of the Housing Department but the latter was not found at her place of residence. 65 . On 28 June 2012 the bailiff handed a warning under Article 315 of the Criminal Code in person to the head of the Housing Department at her place of residence but the latter refused to acknowledge receipt. On 6 July 2012 the Odintsovskiy Garrison Military Court found that the allocation of an apartment to the applicant in Balashikha, Moscow Region, had been unlawful. On 10 December 2012 the bailiff suspended the State registration proceedings in respect of 327 apartments in Moscow in order to compel the respondent authority to comply with the judgment. On 28 January 2013 the bailiff again summoned the head of the Housing Department to appear in person in order to explain the reasons for the prolonged non-enforcement of the judgment. 69 . According to the latest information received by the Court, the judgment in the applicant’s favour remained unenforced. The case of Ms Antonova (application no. 55929/11 lodged on 10 September 2011) The applicant, Ms Svetlana Nikolayevna Antonova, was born on 10 September 1959 and lives in Lyubertsy, Moscow Region. She served in the Border Control Service of the Federal Security Service of the <COUNTRY> (“the FSB”) and was entitled to housing. On 5 April 2005 the Odintsovo Garrison Military Court ordered the relevant department of the FSB to provide the applicant and her family, as a matter of priority, with housing located in the geographic area of her service in accordance with the law in force. That judgment became final on 22 April 2005 but was only enforced on 16 February 2012 when the applicant concluded a social tenancy agreement with military unit no. 55002 for a flat located in Lyubertsy, Moscow Region. The case of Ms Tsvetkova (application no. 60822/11 lodged on 16 August 2011) The applicant, Ms Yelena Aleksandrovna Tsvetkova, was born on 12 December 1951 and lives in Kostroma. On 15 December 2008 the Ostrovskiy District Court of the Kostroma Region ordered the local administration to provide the applicant with comfortable social housing in accordance with the sanitary and technical regulations in force and located in Ostrovskoye, Kostroma Region. On 30 December 2008 that judgment became final but its enforcement was delayed. 75 . On 1 September 2011 the district court granted the applicant’s application for a change in the method of enforcement and ordered the local administration to pay her RUB 442,368, that is, the market value of the housing to which she was entitled. On 3 October 2011 the judgment was upheld on appeal by the Kostroma Regional Court. The award was paid to the applicant in six instalments between 31 January and 22 March 2012. B. Attempts to use domestic remedies against delayed enforcement of the judgments The Compensation Act 76 . The six applicants mentioned below applied to the competent Russian courts with claims for compensation for delayed enforcement of the judgments in their favour, relying on Federal Law no. 68-FZ of 30 April 2010, “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” (“the Compensation Act”). The domestic courts consistently found those actions inadmissible. They held that the judgments at issue imposed on the authorities various obligations in kind, while the Compensation Act was only applicable to delayed enforcement of judgments establishing a monetary debt to be recovered from the State budgets. The Supreme Court of the <COUNTRY> confirmed on appeal that the Compensation Act was only applicable to monetary judicial awards. 78 . The domestic courts concerned and the dates of their decisions are detailed below. Ms Kostyleva: Supreme Court of the Komi Republic, 30 July 2010 (upheld on appeal by the Supreme Court of the <COUNTRY> on 28 September 2010); Mr Zakharchenko: Leningrad Circuit Military Court, 6 October 2010 (upheld on appeal by the Supreme Court on 2 December 2010); Ms Ilnitskaya: Saratov Regional Court, 4 February 2011 (upheld on appeal by the Supreme Court on 12 April 2011); Mr Grinko: Moscow Circuit Military Court, 26 October 2010 (upheld on appeal by the Supreme Court on 25 January 2011); Ms Antonova: Moscow Circuit Military Court, 29 August 2011; Ms Tsvetkova: Kostroma Regional Court, 21 June 2011 (upheld on appeal by the same court on 27 July 2011). Chapter 25 of the Code of Civil Procedure On 31 May 2011 the applicant Ms Kostyleva sued the town administration for failure to comply with the judgments in her favour (see paragraphs 29 and 31 above). Relying on Chapter 25 of the Code of Civil Procedure she asked the Syktyvkar Town Court to acknowledge the administration’s failings to be in breach of both the domestic law and the Convention. On 2 June 2011 the court dismissed the complaint without considering the merits. It specified that such a complaint had to be considered in accordance with a special procedure provided for under Article 441 of the Code of Civil Procedure. On 30 June 2011 the Supreme Court of the Komi Republic granted the applicant’s appeal and quashed the judgment. It found that the applicant’s complaint should have been examined by the lower court under Chapter 25 of the Code of Civil Procedure. 82 . On 11 September 2011 the Syktyvkar Town Court reconsidered the applicant’s complaint and granted it in part. With reference to the Convention and the Court’s case-law, the Syktyvkar Town Court found the administration’s failings unlawful and held that there had been a violation of Article 6 § 1 of the Convention in the applicant’s case. It noted in particular that the first judgment of 2000 had not been enforced for at least eight and a half years, that is, until the delivery of the second judgment in 2009. At the same time the court rejected the applicant’s request that the administration be ordered to comply with the first judgment by 31 December 2011, considering that the building she lived in was unsuitable for renovation and that the second judgment in the applicant’s favour had already ordered the town administration to provide her with other housing. On 7 November 2011 the Supreme Court of the Komi Republic dismissed the administration’s appeal against the judgment of 11 September 2011. The Civil Code On 13 January 2012 the Syktyvkar Town Court partially granted Ms Kostyleva’s civil action against the town administration and awarded her RUB 150,000 in compensation for non-pecuniary damage resulting from the administration’s failure to comply with the first judgment in her favour for at least eight and a half years, that is, until the delivery of the judgment of 20 July 2009. The court relied in particular on Article 151 of the Civil Code in conjunction with Article 13 of the Convention. On 20 February 2012 the applicant brought an appeal against that judgment. She argued that the monetary award had not adequately compensated for the serious non-pecuniary damage she had sustained and was not comparable to the amounts that the Court would have granted in such circumstances ( Zolotareva and Others Russia , nos. 14667/05 et al., 12 April 2011). The applicant’s complaint was dismissed and the judgment upheld on appeal and cassation on 19 April 2012 and 17 July 2012 respectively.

Russian Federation

3

The applicants complained under Article 3 of the Convention of their life sentence with no prospect of release.

2, 3, 14

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

Italy

6

On 30 April and 15 May 1985, respectively, the president of the Mauerkirchen District Court ( Bezirksgericht ) laid a disciplinary information against the applicant. Subsequently, preliminary investigations were carried out. On 15 June 1987 the Disciplinary Council of the Upper Austrian Bar Chamber ( Disziplinarrat der Oberösterreichischen Rechtsanwaltskammer ) decided to open disciplinary proceedings against the applicant. He was charged with several counts of professional misconduct. On 16 May 1988 the Disciplinary Council joined a further set of disciplinary proceedings against the applicant, which had been started in 1987, to the above proceedings and held a hearing in the presence of the applicant. On 18 January 1989 the Disciplinary Council, after having held a further hearing in the presence of the applicant, convicted him on three counts and acquitted him on three other counts. The Disciplinary Council found that he had, in two sets of civil proceedings before the Mauerkirchen District Court, wrongly accused the competent judge of having made incorrect entries in the records and that he had, in a civil case before the Ried Regional Court, repeatedly interrupted the judge and put questions to the other party to the proceedings without having obtained leave to do so. The Disciplinary Council, referring to section 2 of the 1977 Guidelines for the Professional Conduct of Lawyers ( Richtlinien für die Ausübung des Rechtsanwaltsberufes, RL-BA 1977 ), found that the applicant had thereby committed a breach of his professional duties and had infringed the profession's honour and reputation. It ordered him to pay a fine of Austrian schillings (ATS) 5,000. The written version of the Disciplinary Council's decision was served on the applicant on 4 April 1990. The Appeals Board ( Oberste Berufungs- und Disziplinarkommission ) received his appeal in May 1990. On 25 January 1993 the Appeals Board dismissed the applicant's appeal. On the appeal of the Bar Chamber, the Appeals Board confirmed the Disciplinary Council's finding of guilt as regards the three counts, and found the applicant guilty of two disciplinary offences for which he had been acquitted by the Disciplinary Council. In the same decision the Appeals Board decided on appeals brought by both the applicant and the Bar Chamber in two further sets of disciplinary proceedings, which were started in 1988 and 1991, respectively. As to the latter, the Appeals Board, noting that the applicant had requested his acquittal, while the Bar Chamber had requested that the fine imposed on him by the Disciplinary Council be replaced by a three month prohibition on exercising his profession, found that the Disciplinary Council, in its decision of 7 October 1991, had failed to establish the relevant facts. Consequently, the Appeals Board quashed this decision and referred the case back to the Disciplinary Council. As to the 1988 proceedings, the Appeals Board found the applicant guilty on two counts. Noting that the applicant had been found guilty of breaching his professional duties on a total of seven counts, the Appeals Board, referring to the 1990 Disciplinary Act ( Disziplinarstatut 1990), imposed a fine of ATS 25,000 on him. On 17 May 1993 the applicant lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ). He complained in particular about the length of the disciplinary proceedings against him. On 12 October 1994 the Constitutional Court dismissed the applicant's complaint. It found in particular that the Appeals Board had dealt with a number of different sets of disciplinary proceedings against the applicant and a variety of different facts. In the circumstances of the case, the duration of the proceedings was not excessive.

6

THE PARTICULAR CIRCUMSTANCES OF THE CASE In 1983 Mr Frans Vidal was a warder at Saint-Gilles Prison (Brussels), having previously worked at Namur Prison until October 1982. A. Background to the case On 6 February 1983 Mr Bosch Hernandez, an inmate of Namur Prison serving a life sentence imposed by the Brabant Assize Court, attempted to escape. Using a revolver which he had managed to obtain clandestinely, he took the chief warder hostage, but another warder succeeded in disarming him. A note signed by Mr Vidal was found on him; it was undated and read as follows: "I hereby promise to pay the sum of ten thousand francs by 1 or 2 November 1982." When questioned by the Namur police and an investigating judge, he first refused to disclose where the weapon had come from, and then stated that he had been given it by the applicant. Mr Vidal was charged on the following day by the investigating judge of the Namur Court of First Instance (tribunal de première instance). He was detained on the same day and denied that he had provided the weapon. He admitted having written and signed the document, but claimed that he had given it to another inmate, Mr Bieseman, from whom he said he had borrowed the sum of 10,000 Belgian francs to pay gambling debts. The detention order was confirmed on several occasions in 1983. Mr Derriks, the Deputy Director of Namur Prison, indicated that he had new information for the investigators, and was interviewed on 31 August 1983 by the police inspector assigned to the inquiry. He stated as follows: "For some months there have been rumours among the prisoners in C wing suggesting that the former warder, Frans Vidal, was not the person who brought into the prison the revolver used by Bosch Hernandez. More recently, on 29 August 1983, I saw the inmate Alain Scohy in an office of our prison. I had to inform him of an internal administrative decision. On that occasion Scohy told me that he wished to give me information confided in him by other inmates of C wing. He said that the weapon used by Bosch Hernandez had been introduced into the prison initially for the use of the prisoner Omer Bieseman by a certain Miss Lhoir, a visitor of the prisoner Marcel Castris. After she had smuggled the weapon into the prison and hidden it in the visitors’ lavatory, Bieseman had escaped when, on 10 January 1983, he had been taken for a medical examination at the Ste-Camille Clinic. The weapon remained in the prison and finally ended up in the hands of Juan Bosch Hernandez, who had planned to escape with Bieseman using the weapon. According to Scohy, after it had been brought into the building, the weapon was hidden at the bottom of a dustbin, which Bosch alone, as a server, had the possibility of using as a hiding place for at least three months. ... I must inform you that Alain Scohy made this statement spontaneously, but hoping to increase his chances of release on licence. I would add that Bieseman has still not been re-arrested since his escape on 10 January 1983 and that Marcel Castris, nicknamed the ‘C wing banker’, was provisionally released, with a view to deportation, on 19 August 1983. The latter’s visitor may be identified as: Dominique Lhoir ..., or her sister Marie-Eve Lhoir, ... Again according to Scohy, Frans Vidal is totally unconnected with the bringing into the prison of these weapons. ..." The investigators tried to question the persons referred to in the above statement. On 8 September 1983 Mr Bosch Hernandez reaffirmed before the investigating judge that the applicant had provided him with the weapon, in exchange for payment of 100,000 Belgian francs. Mr Scohy, who was questioned in prison on 27 September 1983, refused to say anything, for fear of provoking animosity from the other inmates. He added that he would report of his own accord to the investigating judge once he had obtained his release on licence, and that he would give evidence in the Assize Court if, by then, he was back with his family so that he could protect them from any reprisals by Mr Castris. On 3 October 1983 the police questioned Miss Marie-Eve Lhoir, who denied the accusation that she had introduced a weapon for the use of Mr Castris, a close friend of her sister Dominique. She stated that, although they used her address, Mr Castris and her sister lived elsewhere. Mr Castris and Miss Dominique Lhoir were summoned to appear on 4 October 1983. They telephoned the investigators on that day to tell them that for personal reasons they were unable to appear for the time being but they were willing to come forward at a later date. They did not comply with three further summonses. On 14 October 1983 the investigators informed the investigating judge that the two persons concerned had left their residence for an unknown destination, and that Mr Castris, a foreign national, had been released provisionally shortly before and was subject to a deportation order. On 7 October 1983 the Namur Committals Chamber (chambre du conseil) rescinded the detention order concerning the applicant. Its decision was confirmed by the Liège Indictments Division (chambre des mises en accusation) on 18 October 1983. B. The trial The judgment of the Namur Criminal Court of 9 August 1984 Mr Vidal was sent for trial before the Namur Criminal Court, charged with: "A. on 6 February 1983 ... as an accessory ... having procured weapons which were used to commit a criminal offence, knowing that they were intended to be so used, or having knowingly aided or abetted the perpetrator of the offence ... in respect of action which prepared or facilitated the offence or which carried it out, having attempted to take a hostage, by holding, detaining or seizing Roger Frederick, a prison warder, in order to ... prepare or facilitate the escape [of Bosch Hernandez], the intention to commit the offence having been manifested by conduct which objectively constituted the first step towards the perpetration of the offence and which conduct was halted or failed to attain the aim pursued only as a result of circumstances outside the control of its perpetrators. B. ... having, between 1 October 1982 and 6 February 1983, being the officer on duty with responsibility for an inmate convicted of a criminal offence, namely, Juan Carlos Bosch Hernandez, facilitated the latter’s escape by supplying him with a weapon, the said escape having been attempted using violence or threats. ... having, in 1982, prior to 1 November, over an unspecified period, had in his possession a firearm without having duly registered it. ... E. ... having, in October or November 1982, at a date as yet undetermined, sold a firearm to a person who was neither a manufacturer nor an arms dealer nor in possession of an authorisation to purchase it. ..." On 9 August 1984 the court acquitted him on the following grounds: "... It is not possible on the basis of the case-file or the evidence adduced at the hearing to form, beyond all possible doubt, a conviction as to the ... defendant’s guilt; the statements, albeit categorical, [of Bosch Hernandez] cannot in fact be verified by any specific objective evidence in the case-file; ..." In the same judgment, it convicted Mr Bosch Hernandez and sentenced him to three years’ imprisonment. At the hearing on 28 June 1984 the court had heard the applicant and Mr Bosch Hernandez, and had also taken evidence from two prison warders and three police officers. The judgment of the Liège Court of Appeal of 26 October 1984 The prosecution and the civil party seeking damages appealed. By a unanimous judgment of 26 October 1984, the Liège Court of Appeal sentenced Mr Vidal to three years’ imprisonment, the part of the sentence exceeding the time spent in detention on remand being suspended for five years. It found that: "... the co-defendant’s accusations have remained consistent although he had no interest in ... securing [the applicant’s] downfall, and in addition to other information in the case-file concerning the defendant’s financial circumstances and conduct, the latter having admitted borrowing money from a prisoner, they give rise to serious, precise and concurring presumptions which constitute proof of the charges ..." At the same time it confirmed the sentence imposed on Mr Bosch Hernandez at first instance. Mr Vidal appealed, and the Court of Cassation quashed the judgment on 29 May 1985, on the grounds that the Court of Appeal had been presided over by a judge who had on 26 August 1983 presided over the Indictments Division when it had confirmed a decision of the Committals Chamber refusing to order the appellant’s release, and, having regard to Article 6 para. 1 (art. 6-1) of the Convention, on which he had relied, such a circumstance could arouse in the appellant "a legitimate doubt as to the ability of the Court of Appeal ... to hear the case in an impartial manner." The judgment of the Brussels Court of Appeal of 11 December 1985 On an application by Mr Vidal, the principal public prosecutor of the Brussels Court of Appeal, to which the case had been remitted, sent the public prosecutor of Créteil (Val-de-Marne) a letter of request on 26 July 1985 asking him to question Mr Bieseman, who had in the meantime been arrested in <COUNTRY> and was being held at Fresnes Prison. He was questioned by the French police on 25 October 1985 and denied having lent the applicant 10,000 Belgian francs. The record of his statements was added to the applicant’s case-file. On 11 December 1985 the Brussels Court of Appeal, by a unanimous decision, sentenced Mr Vidal to four years’ imprisonment. The court gave the following reasons for its decision: "... A detailed examination of the evidence in the case-file and of the evidence adduced at the hearing has enabled the court to form the conviction that the defendant is guilty of the offences as charged; This conviction is based on two items of evidence which are complementary: (1) the statements of Bosch Hernandez; (2) the promissory note signed by Vidal; (1) The statements of Bosch Hernandez Notwithstanding the caution with which the statements of a person such as Bosch Hernandez should be treated, the court is bound to observe that the accusations which he levelled against Vidal have remained consistent throughout the investigation and that the statements which he made on numerous occasions both when questioned by the police and on examination by the investigating judge are precise and coherent; In addition it should be stressed that the case-file contains no evidence to support the claim that there was between Vidal and Bosch Hernandez a matter of dispute or disagreement capable of explaining or justifying the accusation made by the latter against the former; Vidal himself has not cited in this respect any reason for his accuser to bear ill-feelings against him; The defendant unsuccessfully alleged in his submissions that Bosch Hernandez’s statements were improbable in numerous respects and contained discrepancies; The court is bound to note that, as regards the essential question, namely the allegation that Vidal supplied Bosch Hernandez with the firearm which was used to carry out the escape attempt, Bosch Hernandez has never altered his statements; In short, these statements at no time appeared improbable or incoherent; on the contrary, they are highly believable and capable of sustaining the conviction formed by the court; (2) The promissory note signed by Vidal It is established that a document constituting a promissory note for a sum of 10,000 francs, signed by Vidal, was discovered in the search made of Bosch Hernandez after his abortive escape attempt; The court notes that the existence of this document accordingly constitutes an objective fact which corroborates Bosch Hernandez’s accusations and shows that there existed between the two men business relations of which the least that can be said is that they were unacceptable as far as Vidal was concerned because of his duties as a prison warder and that these relations were such as to undermine his independence vis-à-vis prisoners; Although he is unable to deny that he had contracted a debt, he has unsuccessfully alleged that he had borrowed the sum from another inmate; This statement, in the first place, is formally contested both by Bosch Hernandez and the other prisoner, a certain Bieseman, and secondly, is not at all consistent with the fact that the disputed document was found in Bosch Hernandez’s hands; It is hard to see why the promissory note should be among the documents in Bosch Hernandez’s possession if Vidal had not been his debtor; These two objective items of evidence, which are in no way incompatible with all the other evidence regarding the defendant’s conduct in relation to the inmates (borrowing sums of money from them, abnormal familiarity, serious failures to carry out proper surveillance), are sufficient to lead the court to form its conviction; The first-instance court wrongly found that charges A, B and E were not established; it did not rule on charge C; These four charges [see paragraph 14 above] are established; the offences referred to therein are a manifestation of a single criminal intention and justify the imposition of only one sentence, the heaviest of those applicable; ... The offences committed by the defendant are extremely serious ones; By facilitating by supplying a weapon the escape of a prisoner serving life imprisonment, even though the escape failed because of circumstances outside his control, the defendant Vidal endangered the lives of certain of his fellow-warders who, like him, were on duty with responsibility for prisoners; Such actions must be punished by a sentence commensurate with their seriousness, and the imposition of any suspended sentence is consequently out of the question; ..." In submissions of 19 November 1985 counsel for the defence had asked the court: "... As principal submission To hold that each and every charge brought against the defendant Vidal is not established, to find him not guilty and acquit him. In the alternative To carry out all appropriate additional investigative measures, and in any event to order Alain Scohy, Jules Bodart, Gérard Dauphin and Pierre Dausin, all detained in Namur Prison at the time of the alleged offences, to be called as witnesses ..." With respect to Mr Scohy, the application was based on the following considerations (pp. 3-4 and 21-23 of the said submissions): "... Short statement of the facts ... During the investigation ... In late August 1983, following rumours which had circulated persistently for some months in C wing of Namur Prison (Vidal had not been inside this prison since being arrested on 7 February 1983, hence no contact with the prisoners in that wing), it had turned out, according to these rumours among prisoners, that it had not been Vidal who had introduced the revolver ‘used by Bosch Hernandez’ ... On 29 August 1983 prisoner Alain Scohy reported these rumours and gave full details as to how the weapon had been introduced and the persons involved - directly or indirectly: Castris, another server in C wing when being visited by his friend Dominique Lhoir - concealment of the weapon, passing it to Bieseman, finally reaching Bosch Hernandez. Bieseman escaped on 10 January 1983. Castris released on licence and deported in October 1983. N.B. No detailed investigation took place regarding these facts. Scohy was not even questioned by the investigating judge, although he had promised [the police] that he would give evidence (e. on oath) before the Court of Assizes if necessary ... ... Critical appreciation of the investigation ... ... The Deputy Director of Namur Prison, Mr Derriks, considered it his duty to bring to the attention of the judicial authorities certain facts (which he thus considered to be sufficiently important), rumours of long standing and statements made by a prisoner Scohy, all of direct relevance to the Vidal/Bosch Hernandez case-file. Rumours (persistent ones) had been circulating for months among the inmates of C wing (the wing of Bosch, a server, of Bieseman, often in the workshop, of Castris, another server ...) according to which the former warder Frans Vidal had not been the person who had introduced the revolver used by Bosch Hernandez ... Commentary This literal quotation from the beginning of the statement by the Deputy Director itself demonstrates uncontradictably that there was a ‘serious’ item of evidence here, to be verified and checked in an exhaustive and thorough manner of course, as to the introduction of the revolver into the prison by some person other than Vidal. The saying ‘no smoke without fire’ which applies here is a vivid expression of popular wisdom. Statements made by prisoner Scohy (to Mr Derriks on 83) These statements are precise enough as to how the weapon was introduced: (a) by a woman visitor ... in the lavatory (b) Castris, the deported ‘banker’ (c) Bieseman, escaped on 10 January 1983 ... (d) Bosch Hernandez these two were known as having made plans to escape ... (e) the weapon was hidden at the bottom of a dustbin. Commentary These three facts mentioned above would on their own have deserved a thorough investigation (the third fact appears believable since Bosch Hernandez stated it himself). Scohy’s offer to give evidence on oath - possibly at the Assizes, with reference to the correctness of the content of his statements ... Commentary Even if this declaration appears from his point of view to favour his request for release on licence, nothing prevented such statements and such an offer of sworn evidence at the very least engaging the attention of an impartial investigator, always hard at work in such a case to find out an undeniable method or opportunity of introducing a weapon into the prison (by a method not involving a prison warder), as Mr Gouverneur, the acting Director of the prison, appositely said ... The investigation appears to us to be manifestly incomplete, as the investigating judge did not consider it necessary to question Scohy before terminating the investigation, even though many facts in the case-file gave Scohy’s statements definite verisimilitude - the possibility of an object being introduced by a woman visitor, who is not searched and has access to the lavatory; the undoubted possibility of hiding a weapon there (for example, securing it in the flushing system or elsewhere); because of his duties in the workshop, access to whole prison by Bieseman, Castris, server, Bosch Hernandez, server, obsessed with gaining freedom, as was his fellow-prisoner Bieseman (escape plans). Extensive contacts between these prisoners in C wing, 20-30 in contact daily for at least two hours usually ... from 30 to 30 p.and from 30 to 30 p., for over ten months. It follows from the above: persistent specific rumours for some months (Vidal did not introduce the weapon), statements made by a prisoner in C wing (no doubt one prisoner among many, in view of the rumours), offer to testify on oath with reference to these quite precise statements, highly likely to be true at least in part, that additional investigative measures in great detail were necessary, at appropriate times and under appropriate conditions; The defence must deplore such a deficiency in the case- file, even though it now appears unnecessary or superfluous in view of the conclusions which now necessarily follow, after a methodical examination of all the facts which have been presented and a critical evaluation of them. ..." This offer to produce evidence was implicitly rejected by the Brussels Court of Appeal, which did not mention it in its decision, and did not call any witnesses before giving judgment. The applicant appealed to the Court of Cassation, relying inter alia on Article 6 paras. 1, 2 and 3 (d) (art. 6-1, art. 6-2, art. 6-3-d) of the Convention. In an appeal comprising six points, he criticised the Court of Appeal in essence for not having replied to certain of his submissions, including his request for witnesses to be called, and for having based its decision on the extremely dubious statements of Mr Bosch Hernandez and a promissory note of no probative value. The Court of Cassation dismissed the appeal on 12 February 1986, for the following reasons: "... ... The judgment states: ‘that a detailed examination of the evidence in the case-file and of the evidence adduced at the hearing has enabled the [Court of Appeal] to form the conviction that the [appellant] is guilty of the offences as charged’ and specifies the facts on which that conviction was based; As the court thus gave the reasons on the basis of which it formed its conviction, it was not bound to indicate the reasons for which it dismissed the application submitted to it for additional evidence to be taken, considered implicitly but clearly in its decision to be of no value in establishing the truth; ... ... The submission, which ... does not state in what way the Court of Appeal failed to give adequate reasons for its decision, or indicate the defence submissions or applications which the appellant put forward in his appeal and which the judgment allegedly failed to answer, is inadmissible as insufficiently specific; ... The judgment noted that the accusations made by the co-defendant Bosch Hernandez against Vidal had been consistent throughout the investigation and that the statements which he had made on numerous occasions, both when questioned by the police and before the investigating judge, were precise and coherent, and considered that they were at no time improbable or incoherent, that they were, on the contrary, highly believable and capable of sustaining the conviction formed by the Court of Appeal and that the appellant’s allegations concerning the loan which he had contracted were categorically denied both by Bosch Hernandez and by another inmate, a certain Bieseman, and moreover were in no way consistent with the fact that the document in question was in Bosch Hernandez’s possession; Where statute, as in this case, does not lay down a specific form of proof, the trial court assesses with unfettered discretion the probative value of the evidence which has been adduced before it and which the parties have been able freely to contradict; The judgment was therefore able, without infringing the statutory provisions cited [by the appellant], to rely on the statements of a co-defendant as evidence against the appellant; ... In addition, the submission which ... amounts to criticising the appellate court’s assessment of the facts is inadmissible; ... ... It is not contradictory to consider that certain statements should be treated with caution and to find that the accusations contained in such statements were formulated consistently throughout the investigation, that they were made on numerous occasions, that they were precise, that at no time did they appear improbable or incoherent and that they were, on the contrary, highly believable and capable of sustaining the conviction formed by the court; ... On the basis of such considerations, the judgment, which decided that ‘the [appellant] unsuccessfully alleged in his submissions that Bosch Hernandez’s statements were improbable in numerous respects and contained discrepancies’, answered the submissions indicated in this point of the appeal; ... That the contested judgment did not base its decision on an element of fact which had been mentioned by the decisions of the investigating authorities or the trial court below does not in itself lead to the conclusion that there has been a violation of the statutory provisions relied on in the appeal; In so far as the judgment under appeal convicted the appellant on the basis of the statements of a co-defendant and the fact that the appellant had signed a promissory note, it gave an adequate statement of the reasons on which it was based and a justification in law for reaching its decision; ..."

France

On 26 April 1999 Mr K. was arrested in <COUNTRY> while in possession of a bag containing approximately 10 kilograms of heroin. When questioned by the Swedish authorities, Mr K. said that he had been unaware of the contents of the bag, which the applicant had requested him to transport to <COUNTRY>. In the subsequent proceedings he also admitted that he had already travelled to <COUNTRY> some weeks previously under the same conditions. He had then also transported a bag, which, after several telephone conversations with the applicant and another person, Mr P., he had finally handed over to someone, who had given him money. Meanwhile, on 28 April 1999 the applicant was arrested in <COUNTRY> on suspicion of having committed offences under the Drug Offences Act ( Suchtgiftgesetz ) and, on 1 May 1999, placed in pre-trial detention ( Untersuchungshaft ). The Graz Regional Court ( Landesgericht ) found that there was a danger that the applicant would commit further offences of the same kind ( Tatbegehungsgefahr ) and that there was risk of collusion ( Verdunkelungsgefahr ). When questioned, the applicant said that in March 1999 an officer of the Slovenian border police, Mr P., had asked him to transport an unidentified object to <COUNTRY> on behalf of Albanian friends. He had arranged that Mr K., his former sales representative for his spectacles business, would provide this service. He had twice received a bag from Mr P., the first one weighing between 8 and 10 kg and the second one between 10 and 12 kg. The applicant had made the bag available at his store and Mr K. had picked it up. He had not been aware of the contents of the bag. As Mr K. had run out of money, he had transferred funds to him in <COUNTRY>. The second journey had taken a similar course. He had assumed that the items were weapons or explosives. On 1 May 1999 the Graz Regional Court opened a criminal investigation in respect of the applicant. On 12 May 1999 the Regional Court held a hearing regarding the applicant's pre-trial detention and ordered its continuation. In addition to the reasons given on 1 May 1999, it referred to the risk of the applicant's absconding ( Fluchtgefahr ). On 4 June 1999 the Graz Court of Appeal ( Oberlandesgericht ) upheld that decision. Meanwhile, on 14 May 1999, the investigating judge requested the Swedish authorities, under arrangements for judicial mutual assistance, to question Mr K.. Mr K. was questioned between 15 and 16 June 1999 in the presence of the applicant's counsel and the investigating judge. He stated inter alia that the applicant ought to have noticed the drug parcels in the bag as he had requested Mr K. to provide clothes and had subsequently put them into the bag. Subsequently, further criminal investigations were conducted relating to the telephone communications between the applicant, Mr K. and Mr P. and the money transfers between them, the latter requiring the disclosure of bank accounts. In the meantime, on 2 June 1999, Mr P. was arrested in <COUNTRY>. On 12 July 1999 the Regional Court, having held a hearing regarding the matter, continued the applicant's detention on remand. On 24 August 1999 interviews were conducted in <COUNTRY> in the presence of the Swedish authorities under arrangements for judicial mutual assistance. On 13 September 1999 the Regional Court continued the applicant's detention. The Court of Appeal dismissed a complaint by the applicant on 28 September 1999. At the end of November 1999 the Slovenian authorities provided an analysis of the data concerning the telephone conversations. The criminal investigations were subsequently extended to <COUNTRY>. On 26 November 1999 and 26 January 2000 the applicant's pre-trial detention was prolonged. In January 2000 the Swedish Court of Appeal gave judgment sentencing Mr K. to 10 years' imprisonment. On 27 March, 29 May and 21 July 2000 the Regional Court ordered the continuation of the applicant's detention. Meanwhile, on 18 May 2000, the Graz Public Prosecutor's Office ( Staatsanwaltschaft ) drew up a bill of indictment charging the applicant with incitement to large-scale drug trafficking. On 20 September 2000 Mr P. committed suicide. He had until then denied everything. On the same day and on 27 September 2000 the Graz Regional Criminal Court, sitting as a chamber composed of two professional judges and two lay judges ( Schöffengericht ), held hearings in the criminal case against the applicant. It heard evidence from the applicant and several other witnesses. It then adjourned in order to hear evidence from Mr K., who was detained in <COUNTRY> but had requested to serve his sentence in <COUNTRY>. The presiding judge therefore assumed that evidence could be heard from Mr K. at the trial in <COUNTRY>. However, at the end of February 2001 the Federal Ministry of Justice ( Justizministerium ) was informed by a letter from the Swedish authorities that Mr K. had unexpectedly withdrawn his request. The Regional Court was informed about this at the end of March 2001, when the letter had been translated into German. On 15 May 2001 the Graz Regional Court dismissed the applicant's request for release and ordered the continuation of his pre-trial detention. It noted that there was a risk that the applicant would abscond as he was in a precarious financial situation, had contacts abroad and was facing the possibility of a severe sentence. It further noted that the applicant had presumably acted in the context of organised crime and was, therefore, likely to abscond for reasons of security. It noted in this regard that the applicant's accomplice Mr P. had committed suicide in order to avoid responsibility towards the organisation behind the crime and that the organisation had lost considerable assets through the applicant's intervention. It found that the applicant's family bonds were of no relevance in this regard. It also found that there were motives for the applicant to carry out further offences of the kind he was suspected of and referred in this regard to the fact that the applicant was charged with professional ( gewerbsmäßige) crimes. It noted finally that the case was complicated as it was now indispensable for the court to travel to <COUNTRY> in order to hear evidence from Mr K.. The applicant appealed on the ground that there was insufficient evidence against him and that his detention was disproportionate to the sentence he might incur. He argued that he had helped find Mr P., had confessed and had no previous criminal record. He further contested that there was any risk of absconding and submitted in this regard that he was socially integrated in <COUNTRY>, as his wife and two infant children were living there, and that he did not dispose of any financial means. In any event the authorities could prevent his absconding by other means, such as taking his solemn promise or confiscating his passport. He referred finally to the length of the proceedings and submitted that the Swedish proceedings against Mr K. were already finished. On 21 June 2001 the Graz Court of Appeal dismissed the applicant's appeal. It noted that there was a reasonable suspicion against the applicant, based on the evidence given by Mr K.. Noting in particular that the applicant was now substantially less socially integrated on account of the offence with which he was charged, that he was of German nationality, had contacts abroad and was liable to a sentence of up to fifteen years' imprisonment, it confirmed that there was a risk of absconding. It further found that there was a risk that the applicant would carry out further offences of the same kind and referred in this regard to the professional manner in which the smuggling of the heroin had been carried out. It observed that the applicant had acted in the context of an international criminal organisation and that his precarious financial situation had worsened. The court found that the length of the detention until now was not disproportionate to the sentence which the applicant risked incurring. The applicant's further detention was justified on condition that further hearings were held as soon as possible. As to the adjournment of the trial, it noted that the Regional Court had first legitimately assumed that Mr K. could soon give evidence at the trial in <COUNTRY>. On 30 July 2001 the applicant, invoking Article 5 §§ 1 and 3 of the Convention and referring to the case Clooth <COUNTRY> (judgment of 12 December 1991, Series A no. 225) lodged a fundamental-rights complaint ( Grundrechtsbeschwerde ) with the Supreme Court ( Oberster Gerichtshof ). On 25 October 2001 the Supreme Court gave judgment (served on 4 December 2001) dismissing this complaint and upholding the Court of Appeal's findings. Meanwhile, on 1 August 2001 the Graz Regional Court dismissed a further request by the applicant for release. It noted that the criminal proceedings were likely to end soon as the parties had agreed that Mr K.'s statements at the hearing in <COUNTRY> could be read out at the trial. On 21 August 2001 the Court of Appeal upheld that decision. On the same day and on 23 August 2001 it held further hearings. Evidence was heard from the applicant again. The Regional Court convicted the applicant on the latter date of professional crimes under the Drugs Act, explained the judgment orally and sentenced the applicant to twelve years' imprisonment (from which the period of pre-trial detention was deductible). In the written version of the judgment, which was served on the applicant's counsel on 15 January 2002, the court held that the applicant had twice retained Mr K. to transport drugs to <COUNTRY>, once approximately 10 kilograms of heroin and once an undetermined but similar amount of heroin. Both journeys had been covered and supervised by further backers of the international drugs organisation. Upon a further request for release by the applicant, the Regional Court prolonged the applicant's pre-trial detention. On 6 February 2002 the Graz Court of Appeal upheld that decision. The applicant subsequently lodged a fundamental-rights complaint with the Supreme Court in which he complained about the length of his detention, referring, inter alia, to alleged delays in the proceedings before his conviction. On 4 April 2002 the Supreme Court dismissed the complaint. On the same day it rejected the applicant's plea of nullity. On 29 May 2002 the Graz Court of Appeal ( Oberlandesgericht ) allowed the applicant's appeal in part and reduced his sentence to ten years' imprisonment. Upon the applicant's request, he was transferred to <COUNTRY> where he is currently serving his sentence.

Belgium, Croatia, Sweden, Germany, Austria, Norway

THE PARTICULAR CIRCUMSTANCES OF THE CASES A. Mr VILVARAJAH Events prior to removal The first applicant, Mr Nadarajah Vilvarajah, born in 1960, is a citizen of <COUNTRY>, of Tamil ethnic origin. He worked as an assistant in his father’s shop in Paranthon, Kilinochchi District, in the northern part of the island. On several occasions the Sri Lankan army had attacked his district, killing people and destroying property. His cousin and five other men were killed by the army in 1986 and the family shop was raided and damaged on 28 March 1987. He stated that he was detained on two occasions by naval forces in March and April 1986 and assaulted. On the first occasion he was driving a minibus which broke down close to a naval base. He and his passengers were detained by a navy patrol for ten hours. He claimed to have been heavily beaten. On the second occasion, whilst driving the minibus, he was stopped by a naval patrol and detained for twenty-four hours. They accompanied the bus back to his home town of Karainagar where they opened fire at random on people there. Fire was also exchanged between a Tamil separatist group, the Liberation Tigers of Tamil Eelam ("LTTE"), and the naval personnel, who used the bus passengers as shields. During a major Sri Lankan army offensive to retake the Northern Province from the LTTE, the first applicant’s family lost their shop and belongings and were at serious risk of losing their lives. In May 1987 his father arranged with an agent in Colombo for him to be sent to London. He travelled on his own passport to Madras on 6 June 1987. On 10 June he travelled with a Malaysian passport (provided by an agent in Madras) to London via Bombay. He arrived in London on 11 June seeking entry to the <COUNTRY> as a visitor for two days, in transit to Montreal, <COUNTRY>, where he said he was going for a holiday. He was detained pending enquiries. On admitting that he was not the rightful holder of the Malaysian passport in which his photograph had been substituted for that of the true owner, he was refused leave to enter the <COUNTRY>, under paragraph 3 of the Statement of Changes in Immigration Rules (see paragraph 84 below) which requires that a person seeking admission must produce a valid passport or other identity document. On 12 June he requested asylum in the <COUNTRY> under the 1951 United Nations Convention relating to the Status of Refugees as amended by the Protocol of 1967 ("the 1951 Refugee Convention"). On 19 June he was interviewed by immigration officers in the Tamil language with the assistance of an interpreter. He stated that it was unsafe for him to remain in <COUNTRY> for the reasons outlined above. The applicant’s asylum request was then referred to the Refugee Section of the Immigration and Nationality Department of the Home Office. However, they concluded that he had not shown that he had a well-founded fear of persecution for the purposes of the 1951 Refugee Convention. On 20 August 1987 the Secretary of State refused his request for asylum. He was informed of this decision in the following terms: "You have applied for asylum in the <COUNTRY> on the grounds that you hold a well-founded fear of persecution in <COUNTRY> for reasons of race, religion, nationality, membership of a social group or political opinion. You said it was unsafe for you to remain in <COUNTRY> due to Government operations around Jaffna. You also said you had been detained on two occasions in March and April 1986 for 10 hours and 24 hours respectively and that on 28 March 1987 the army raided your family business. But it is noted that the incidents you have related were random and part of the army’s general activities directed at discovering and dealing with Tamil extremists and that they do not constitute evidence of persecution. You have produced no other evidence in support of your application for asylum. The Secretary of State has considered the individual circumstances of your case and in addition the situation in <COUNTRY> and has concluded that you have not established a well-founded fear of persecution in <COUNTRY>. Accordingly your application for asylum is refused. Since you do not otherwise qualify to enter the <COUNTRY>, the Immigration Service has been instructed to arrange for your removal to <COUNTRY> to which country you are returnable under para. 10 of schedule 2 Immigration Act 1971." Arrangements for his removal to <COUNTRY> were made for 22 August 1987. The applicant then instituted proceedings for judicial review in which he sought, unsuccessfully, to have the Secretary of State’s decision quashed (see paragraphs 67-69 below). Events following return to <COUNTRY> The applicant was returned to <COUNTRY> on 10 February 1988. He was escorted by police officers, the Sri Lankan authorities having been forewarned. His name was published in Sri Lankan newspapers. He was interviewed briefly on arrival by Sri Lankan immigration authorities at the airport. A member of the British High Commission was also present at the airport on arrival. The removal expenses were paid by the Home Office and the first applicant had funds in excess of £100. After his return an appeal was lodged in the <COUNTRY> by his solicitors under section 13 of the Immigration Act 1971 against the asylum refusal (see paragraphs 71-72 below). They went to Colombo to interview and take statements from him. He confirmed that thanks to the publicity surrounding his case and the presence of the member of the British High Commission he was given little trouble at the airport. He stated that he was questioned for about three hours by the Sri Lankan police as to whether he had connections with Tamil separatist groups like the People’s Liberation Organisation of Tamil Eelam ("PLOTE") and the LTTE, which he denied. The police noted his address and took his fingerprints. The applicant stated that he returned to his native village to avoid the Sri Lankan authorities and denunciation by the PLOTE with whom he had been associated, in fact, but who were now cooperating with the Indian Peace Keeping Forces ("IPKF") in identifying their former members and alleged LTTE members. He also said that two weeks after his return he was denounced to the IPKF and summoned to the local Chief Officer’s Office. He was accused of connections with the LTTE and became frightened. However, he was allowed to return home after questioning. On a visit to Jaffna in April 1988 he was rounded up with other Tamils and detained for ten hours by the IPKF. They were paraded in front of masked men who identified certain persons. He was afraid they would make an error, but he was released. The applicant recounted other incidents which led him to fear IPKF ill-treatment because of his earlier involvement with the PLOTE and the IPKF’s arbitrary manner of dealing with Tamils. When he went to Colombo to see his solicitors he had to go through numerous IPKF and Sri Lankan checkpoints doubling the length of the normal eight hour journey. On 13 March 1989 the Adjudicator found in the applicant’s favour and he was subsequently allowed to return to the <COUNTRY> on 4 October 1989 (see paragraphs 71-72 below). Shortly after his return he made a further application for asylum which is still under consideration. He has been granted exceptional leave to remain initially for 12 months and thereafter until 22 March 1992. B. Mr SKANDARAJAH Events prior to removal The second applicant, Mr Vaithialingam Skandarajah, born in 1958, comes from Jaffna in the north of <COUNTRY>, an area which had been under the control of the LTTE when he was living there. He stated that in 1985 the Sri Lankan army staged a reign of terror. People could not go out in the street. Young men were arrested without reason; some were tortured or "disappeared" or were shot on sight. Everyone was suspected of being a Tamil separatist and lived in fear. When the army conducted searches the applicant and his family hid in trenches. His house was searched regularly until 1985. It was destroyed in 1986. The family had to go for days without food and starved because it was dangerous to go out to fetch it. The army’s daily bombing of the Tamil area was indiscriminate. It was this and damage to his home and business on 24 April 1987 which made him decide to leave. He claimed to have been questioned by the police about the LTTE, although he has never belonged to them. The applicant left Jaffna having lost all his possessions apart from 150,000 rupees. He went to Colombo where he was arrested by the police on 2 May 1987 at his uncle’s home. He stated that he was held for twenty hours and tortured, resulting in injury and scarring to his right leg. On 6 June 1987 the applicant travelled by air from Colombo to Madras on his Sri Lankan passport. On 10 June he then travelled with a false Malaysian passport, obtained through an agent in Madras, via Bombay to London. He sought entry as a visitor for two days, in transit to Montreal, <COUNTRY>. The applicant was refused leave to enter by the <COUNTRY> immigration authorities on 12 June under paragraph 3 of the Statement of Changes in Immigration Rules (see paragraph 11 above). He then revealed his Sri Lankan nationality and requested asylum. On 17 June he was interviewed by immigration officers about his asylum application in the Tamil language with the assistance of an interpreter. He explained his fear of persecution if returned to <COUNTRY>. His case was then referred to the Refugee Section of the Home Office. It was concluded that he had not demonstrated that he had a well-founded fear of persecution within the meaning of the 1951 Refugee Convention. On 20 August 1987 the Secretary of State refused his asylum request. He was informed of this decision in the following terms: "You have applied for asylum in the <COUNTRY> on the grounds that you hold a well-founded fear of persecution in <COUNTRY> for reasons of race, religion, nationality, membership of a social group or political opinion. The Secretary of State has considered your application. You said it was unsafe for you to return to <COUNTRY> because of the Government operation around Jaffna. You stated that your house and business premises had been destroyed by Government shelling. You also said that you had been detained for 20 hours in May 1987 and had been assaulted. But it appears that the destruction of your house and business resulted from a random shelling arising from civil disorder and it appears that your arrest and brief detention were part of the army’s general activities directed at discovering and dealing with Tamil extremists. The Secretary of State has considered the individual circumstances of your case and in addition the situation in <COUNTRY> and has concluded that you have not established a well-founded fear of persecution in <COUNTRY>. Accordingly your application for asylum is refused. Since you do not otherwise qualify to enter the <COUNTRY>, the Immigration Service has been instructed to arrange for your removal to <COUNTRY> to which country you are returnable under para. 10 of schedule 2 Immigration Act 1971." Arrangements for his removal to <COUNTRY> were made for 22 August 1987. The applicant then instituted proceedings for judicial review in which he sought, unsuccessfully, to have the Secretary of State’s decision quashed (see paragraphs 67-69 below). Events following return to <COUNTRY> The applicant was returned to <COUNTRY> on 10 February 1988. His reception at the airport was the same as that of the first applicant (see paragraph 15 above). He was then interviewed by the Sri Lankan police for several hours and fingerprinted. He stayed at his uncle’s house in Colombo for about a month until it was safe to travel to Jaffna. After his return to <COUNTRY> an appeal was lodged in the <COUNTRY> by his solicitors under Section 13 of the Immigration Act 1971 against the refusal of asylum. They went to Colombo to interview and take statements from him (see paragraphs 71-72 below). He told them that on 10 March 1988 he was travelling to Jaffna by bicycle from his home when he was stopped at an IPKF checkpoint. Tamil men and boys were lined up for identification by two masked men, one of whom picked out the applicant. He was taken with about ten others to an IPKF camp in a Jaffna house where he was beaten for about three hours. Part of the time he was clubbed with sand-filled PVC pipes. At the same time questions were shouted at him about the LTTE, of which the applicant denied any knowledge. He was kept in a small room without bedding or sanitary facilities, with six other detainees who were receiving similar ill-treatment. Some of them were hung upside down and beaten. The applicant was beaten intensely on three occasions over the next seven days for periods of about half an hour. He was detained until 24 May 1988, and questioned by the same men. He lost 20-30 lbs in weight, had bad headaches and was very frightened. The Indian soldiers constantly told him that if he did not talk they would keep him locked up for ever. The detainees were given rice, dahl and chapatis and insufficient water. They became dehydrated and constipated. They were filmed and apparently later shown on television as surrendered LTTE men. The applicant was rescued by members of his family who bribed the local IPKF commander with gold. On release he was told to report daily. He then fled to Colombo. He stated that life there at that time was very tense for Tamils. There was a constant danger of arbitrary arrest, detention and denunciation by informers. However, he felt safer in Colombo than in Jaffna. To justify his stay in Colombo he registered as a student. On 13 March 1989 the Adjudicator found in the applicant’s favour and he was subsequently allowed to return to the <COUNTRY> on 4 October 1989 (see paragraphs 71-72 below). Shortly after his return he made a further application for asylum which is still under consideration. He has been granted exceptional leave to remain initially for twelve months and thereafter until 22 March 1992. Mr SIVAKUMARAN Events prior to removal The third applicant, Mr Saravamuthu Sivakumaran, born in 1966, comes from Point Pedro, where his family lives, in the north of <COUNTRY>. In April 1984 he witnessed the killing of his brother by navy personnel. His brother was fishing in a boat with a friend off the coast at Point Pedro. Navy personnel came by in a boat and shot and killed both of them without warning or reason. In March 1984 security forces came to the area and rounded up male Tamils, including the third applicant. They were detained for one day and assaulted with rifle butts and sticks. Their names and family details were noted. Some of them were taken away by the army. In June 1984 300 male Tamils, including the applicant, were detained in Point Pedro. They were assaulted. The security forces took away fifteen people and shot and killed them the same day. The bodies were burned. In September 1984 male Tamils were also rounded up and detained for one day. The applicant was again detained. About twenty people were taken away, shot and killed. The bodies were burned on the spot. Point Pedro has been regularly subjected to air bombardment and shelling by the army. The applicant’s family house was damaged during an air bombardment in October 1985 and the family had to move to another house in the area. The applicant stated that he was in the LTTE from late 1984 until he left <COUNTRY>. He did some military training and was a sentry for the camp. He also carried communications for them. He claimed, however, never to have been involved in any violence or terrorist activities. His father decided that the applicant should leave <COUNTRY> as he feared for his son’s safety as a young male Tamil. Arrangements were made through a Tamil agent in Point Pedro for his son to leave the country. The applicant travelled to Colombo on 28 November 1986 and stayed with the agent until 11 December 1986. He travelled to the <COUNTRY> via <COUNTRY>, <COUNTRY> and Dhaka. On the way to Colombo airport, the minibus in which he was travelling was stopped at an army checkpoint just before the airport. The applicant and the other passengers were accused of going for training with militants in <COUNTRY>. They were taken to an office and held for three hours, questioned and fingerprinted. The applicant was one of a group of some 64 Tamils who arrived at Heathrow Airport, London, on 13 February 1987 and claimed asylum. He originally stated that he was in transit to <COUNTRY>. The 64 Tamils were all detained pending the proceedings. He was interviewed by immigration officers in the Tamil language with the aid of an interpreter. He described the events outlined above. At that stage he averred that he was not a member of the LTTE and, in fact, did not make this claim to the British authorities until September 1987 as he feared it would have adverse effects on his asylum application. His case was referred to the Refugee Section of the Home Office. They concluded that the applicant had not established a well-founded fear of persecution within the meaning of the 1951 Refugee Convention and his application for asylum was refused on 16 February 1987. However, an application for leave to apply for judicial review was made to the Divisional Court and granted on 24 February. On 2 March the Home Office informed the applicant’s solicitors that a fresh decision would be taken on the asylum claim. Representations from the <COUNTRY> Immigrants’ Advisory Service ("UKIAS") were received and the applicant was re-interviewed about his asylum claim on 14 April 1987. The application for asylum was reconsidered in the Refugee Section but they again concluded that the applicant had not demonstrated that he had a well-founded fear of persecution. Details of the case were referred to the Secretary of State, who reached a similar conclusion. Accordingly, on 20 August 1987 a refusal letter was served on the third applicant, which read as follows: "You have applied for asylum in the <COUNTRY> on the grounds that you hold a well-founded fear of persecution in <COUNTRY> for reasons of race, religion, nationality, membership of a social group or political opinion. The Secretary of State has further considered your application. You said it was too dangerous to stay in <COUNTRY>. People were being arrested indiscriminately and killed by the security forces. You also said that you had been detained on three occasions between 1984 and 1985 and that you had been detained for three days after being arrested with your travelling companions on the way to Colombo. Lastly you said your brother, Kamarajah, had been shot by the navy in 1984. But it is noted that the experiences to which you refer were the result of civil disorder in <COUNTRY> rather than persecution within the terms of the United Nations Convention relating to the Status of Refugees and that your arrests were part of the army’s general activities directed at discovering and dealing with Tamil extremists and that on each occasion you were released without charge after a short period. It is further noted that your brother was shot dead by the navy when he failed to obey a lawful order. The Secretary of State has considered the individual circumstances of your case and in addition the situation in <COUNTRY> and has concluded that you have not established a well-founded fear of persecution in <COUNTRY>. Accordingly your application for asylum is refused. Since you do not otherwise qualify to enter the <COUNTRY>, the Immigration Service has been instructed to arrange for your removal to <COUNTRY> to which country you are returnable under para. 10 of schedule 2 Immigration Act 1971." Arrangements for his removal to <COUNTRY> were made for 22 August 1987. The applicant then instituted proceedings for judicial review in which he sought, unsuccessfully, to have the Secretary of State’s decision quashed (see paragraphs 67-69 below) Events following return to <COUNTRY> The applicant was removed to <COUNTRY> on 12 February 1988. His reception at the airport was the same as that of the first applicant (see paragraph 15 above). On 9 January 1990 the applicant’s representatives submitted a statement he had made to them about his treatment in <COUNTRY> on his return there as of 13 February 1988. He alleged that on his return he was held by the Sri Lankan Police (Criminal Investigation Division) for a day and treated like a criminal whilst being interrogated about his reasons for having gone to the <COUNTRY>. He then stayed with his parents for a few weeks. On 2 April 1988 whilst passing through a checkpoint he was identified by a masked man as having being involved with the LTTE and detained by the IPKF. He was interrogated about the LTTE and tortured every four or five days. He was stripped and beaten with iron bars and sand-filled PVC pipes. Sometimes he was tied upside down and a fire, with chillies, lit underneath his head lasting 10 or 15 minutes until he passed out. On four or five occasions he was subjected to electric shock treatment to his genitals. He admitted his previous involvement with the LTTE. He was released on 3 October 1988 after his parents managed to bribe the Commanding Officer. He then spent two weeks in hospital as he could hardly walk. However, he was rearrested on 29 November 1988 by the IPKF, accompanied by members of the Eelam People’s Revolutionary Liberation Front ("EPRLF"). He received the same ill-treatment as before and was released on 30 December 1988 following a further bribe from his parents. He went into hiding for two months and tried to travel to <COUNTRY> but was cheated by an agent who left him in <COUNTRY>. He then had to return to <COUNTRY> in April 1989 and hid in Colombo. There he was once beaten up by navy personnel. Since his return to the <COUNTRY> he stated that the IPKF and EPRLF are still harassing his family. Although the applicant’s whereabouts were undisclosed for some time, he kept in contact with his solicitors, who lodged an appeal in the <COUNTRY> on his behalf against the refusal of asylum. This appeal was successful. The Adjudicator upheld his claims on 13 March 1989 (see paragraphs 71-72 below). The applicant was subsequently allowed to return to the <COUNTRY> on 4 October 1989, where he was granted exceptional leave to remain initially for twelve months and thereafter until 22 March 1992. Shortly after his return he made a further application for asylum which is still under consideration. Mr NAVRATNASINGAM Events prior to removal The fourth applicant, Mr Vathanan Navratnasingam, born in 1970, comes from Achelu but received his schooling in Point Pedro until December 1986. He claimed to have been detained five times by the Sri Lankan armed forces: in 1983 for one month, in 1984 for one day, in 1985 for one week, in 1986 for half a day and in 1987 for one and a half days. In May 1984 the army set fire to his school at Point Pedro. The day after the raid he was detained at the local army camp for six or seven hours and accused of burning down the school. The principal of the school protested and secured his release. In May 1986, while the applicant was on his way to school by bus, an army helicopter bombed a bridge which the bus was to cross and everyone was ordered off the bus. He was detained at an army camp for seven hours and threatened with ill-treatment. His elder brother in the meantime fled to <COUNTRY> (January 1986) where he was granted political asylum. After August 1986 there was intensive shelling by the army and on 1 January 1987 the family home in Achelu was destroyed. He has not seen either his mother or sister since. His father returned to the family house to find it destroyed and on 15 January 1987 took his son to Colombo by bus. They were arrested at Elephant Pass, 30 miles from Jaffna, and held at the army camp there for one and a half days. They arrived in Colombo on 18 January 1987, where his father arranged with an agent for his son to leave <COUNTRY>. The applicant had felt insecure in Colombo as he had Tamil identity cards and the authorities knew he was not a local. He subsequently flew to London, arriving at Heathrow airport on 13 February 1987 where he requested asylum. Several pages of his passport had been removed. He was one of the group of 64 Tamil asylum seekers (see paragraph 38 above). The applicant was detained pending the proceedings. He was interviewed on two occasions by an immigration officer in the Tamil language with the assistance of an interpreter. During these interviews he described the events outlined above. He also stated that he had not been politically involved in <COUNTRY>. His case was then referred to the Refugee Section of the Home Office. They concluded that the applicant had not established a well-founded fear of persecution within the meaning of the 1951 Refugee Convention and his application was refused on 17 February 1987. However, an application for leave to apply for judicial review was made to the Divisional Court and granted on 24 February. On 2 March the Home Office informed the fourth applicant’s solicitors that a fresh decision would be taken on the asylum claim. Representations from UKIAS were received and the applicant was re-interviewed about his asylum claim on 23 April 1987. The application for asylum was reconsidered in the Refugee Section but they again concluded that he had not demonstrated that he had a well-founded fear of persecution. Details of the case were referred to the Secretary of State, who reached a similar conclusion. The fourth applicant was informed of this decision by the Home Office on 1 September 1987 in a letter which read as follows: "You applied for asylum in the <COUNTRY> on the grounds that you have a well-founded fear of persecution in <COUNTRY> for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Secretary of State has further considered your application. <COUNTRY> has in recent years experienced considerable disorder which the <COUNTRY> authorities have had to take measures to control. As a result of this disorder individuals of all ethnic groups have suffered. However the Secretary of State, having considered all the available evidence, does not consider that Tamils in <COUNTRY> are a persecuted group who have a claim to refugee status under the 1951 UN Convention Relating to the Status of Refugees simply by virtue of their ethnic or national origins. Nevertheless the Secretary of State does consider individual applications for asylum made by Tamils from <COUNTRY> to see whether they fall within the terms of the 1951 UN Convention. This depends on the circumstances in the individual case. In support of your application you said that your life was in danger in <COUNTRY> and that your house had been damaged by army shelling. You also said that you had once been held up by the army with the others on your school bus for six hours, and also that the bus you were travelling on from Jaffna to Colombo had been held up by the army for 24 to 36 hours. At your interview on 13 April 1987 you added that you had been picked up by the army and held for an hour in 1984. However the Secretary of State has also taken account of the fact that the damage to your house had been caused by indiscriminate shellings, that neither you nor your travelling companions had been harmed in any way on the two occasions you were held up and that you had not been harmed while detained for an hour in 1984. Moreover the <COUNTRY> Immigrants’ Advisory Service have stated on your behalf that you did not stay in Colombo after reaching there on 18 January 1987 because you felt insecure on account of holding a Tamil identity card and because the authorities knew that you were not a local. You stated at a further interview in April 1987 that you thought your father, who had accompanied you to Colombo and saw you off on the plane on 2 February, had probably gone back to take up his job as a teacher in a government run school and had re-established contact with your mother and sister. Having taken account of all the matters you have put forward in support of your application and of the other matters set out in this letter the Secretary of State is not satisfied that you have a well-founded fear of persecution in <COUNTRY> within the terms of the 1951 UN Convention Relating to the Status of Refugees. Since you do not otherwise qualify for leave to enter the <COUNTRY>, the Immigration Service have been instructed to arrange your removal to <COUNTRY> to which country you are returnable under para. 10 of schedule 2 to the Immigration Act 1971." Arrangements for the applicant’s removal to <COUNTRY> were made for 4 September 1987. The applicant then instituted proceedings for judicial review in which he sought, unsuccessfully, to have the Secretary of State’s decision quashed (see paragraphs 67-69 below). Events following return to <COUNTRY> The applicant was removed to <COUNTRY> on 12 February 1988. His reception at the airport was the same as that of the first applicant (see paragraph 15 above). He was then interviewed aggressively by the Sri Lankan police for four hours about his association with Tamil groups and the travel agencies who had been involved in his escape to the <COUNTRY>. His fingerprints were taken. After his return to <COUNTRY> an appeal was lodged in the <COUNTRY> by his solicitors against the refusal of asylum. They went to Colombo to interview and take statements from him. He told his solicitors that on his return he stayed with a family friend in Colombo because no trace had been found of his family. He did not go out unless escorted by a Sinhalese speaker who could deal with any trouble from the police. He had many difficulties because he did not have his identity card which had been lost by the Home Office immigration service. He did not try to find his family because he could not get through the many checkpoints. The applicant was arrested without any identity card by the police on or around 10 March 1988, detained for four hours and questioned about his activities in Colombo. A family friend persuaded the police to release him. The atmosphere in Colombo for Tamils was very tense since they were subject to attack by Sinhalese. In May 1988 the applicant was again arrested by the police, detained overnight, beaten with belts and kicked for about half an hour. He was accused of hiding Tamil terrorists from the LTTE group. The family friend managed to bribe someone to obtain his release. The beating aggravated an ulcer condition that began when the applicant was in the <COUNTRY>. As a result he had to spend a week in hospital. The applicant was further distressed to see a television report in which two of his relatives were shown to have been killed in crossfire between the LTTE and the IPKF several miles from his home village. The applicant’s appeal in the <COUNTRY> was successful. The Adjudicator upheld his claims on 13 March 1989 (see paragraphs 71-72 below). He was subsequently allowed to return to the <COUNTRY> on 4 October 1989, where he was granted exceptional leave to remain initially for twelve months and thereafter until 22 March 1992. Shortly after his return he made a further application for asylum which is still under consideration. E. Mr RASALINGAM Events prior to removal The fifth applicant, Mr Vinnasithamby Rasalingam, born in 1961, comes from Manor Town which is in the north west of <COUNTRY> about 90 miles from Jaffna. This town was constantly bombarded by the State’s military forces towards the end of 1986. Many Tamils were hiding in the jungle. His family home and shop were burnt down in 1985 by soldiers. He believed that two of his brothers had been shot dead by the army in 1986. He had already witnessed the army killing two people in 1985. At that time the applicant was hiding in the jungle for his safety. He was also shot at by soldiers passing through his town. Since 1983 problems have existed in the applicant’s area with the town’s Sinhalese majority. Many people have been killed and buildings destroyed. There had been rumours of massacres elsewhere. An army camp was situated five miles from the applicant’s home. Young men were particularly at risk. If the military saw them they were liable to summary arrest, torture or even murder. People ran away when they saw soldiers coming, although by the time the applicant left <COUNTRY> they were mostly confined to their camps. Nevertheless soldiers would search for people in convoys. The applicant’s area was controlled by Tamil separatists. His house was searched weekly by the army. He was not a member of any political group or terrorist organisation. The applicant paid an agent 50,000 Sri Lankan rupees to help him leave <COUNTRY>. He arrived at Heathrow Airport on 19 March 1987 and claimed asylum, although he had originally planned to go to <COUNTRY>. Several pages had been removed from his passport. On 20 March he was interviewed in the Tamil language with the assistance of an interpreter. During this interview he described the events outlined above. The applicant’s request for asylum was then referred to the Refugee Section of the Home Office. They concluded that he had not demonstrated a well-founded fear of persecution within the meaning of the 1951 Refugee Convention. Details of the case were referred to the Secretary of State, who reached a similar conclusion. In a letter dated 1 September 1987, the applicant was informed of the refusal of his asylum request in the following terms: "You have applied for asylum in the <COUNTRY> on the grounds that you have a well-founded fear of persecution in <COUNTRY> for reasons of race, religion, nationality, membership of a particular group or political opinion. <COUNTRY> has in recent years experienced considerable disorder which the <COUNTRY> authorities have had to take measures to control. As a result of this disorder individuals of all ethnic groups have suffered. However the Secretary of State, having considered all the available evidence, does not consider that Tamils in <COUNTRY> are a persecuted group who have a claim to refugee status under the 1951 UN Convention Relating to the Status of Refugees simply by virtue of their ethnic or national origins. Nevertheless the Secretary of State does consider individual applications for asylum made by Tamils from <COUNTRY> to see whether they fall within the terms of the 1951 UN Convention. This depends on the circumstances in the individual case. In support of your application you said that it was impossible to live in <COUNTRY> because Tamils are being persecuted. There was an army camp 5 miles from your village and villagers were always being chased away by troops. You said that your parents’ home was burnt down in 1985 together with the rest of your village and that you had been questioned and threatened by troops in February 1985 and your shop had been burnt down. You also said that two of your five brothers had been shot dead by troops. However the Secretary of State has also taken account of the fact that you lived safely in <COUNTRY> for two years following the destruction of your parents’ home and your shop and that your parents have lived in a small house the other side of the forest from where they used to live and that you helped on your father’s land. Your parents, three other brothers and four sisters, some married with families of their own have, on the information which you have provided, continued to live safely in <COUNTRY> to the present time. Having taken account of all the matters you have put forward in support of your application and of the other matters set out in this letter the Secretary of State is not satisfied that you have a well-founded fear of persecution in <COUNTRY> within the terms of the 1951 UN Convention Relating to the Status of Refugees. As you do not otherwise qualify for entry under the Immigration Rules I therefore refuse you leave to enter." Arrangements for the applicant’s removal to <COUNTRY> were made for 4 September 1987. The applicant then instituted proceedings for judicial review in which he sought, unsuccessfully, to have the Secretary of State’s decision quashed (see paragraphs 67-69 below). Events following return to <COUNTRY> The applicant was returned to <COUNTRY> on 12 February 1988. His reception at the airport was the same as that of the first applicant (see paragraph 15 above). On returning to <COUNTRY> he had difficulties because, like the fourth applicant, he had no identity card. It had been temporarily lost by the Home Office immigration service and was returned to him by post later. He obtained a forged card and managed to escape arrest during numerous police searches. His brother joined the LTTE and the applicant had money extorted out of him for their cause. He was suspected by the Sri Lankan and Indian authorities and is still being sought by them. In April 1988 he fled to <COUNTRY> after learning that his father and brother had been detained by the IPKF. Although his whereabouts were undisclosed for some time, the applicant kept in contact with his solicitors, who lodged an appeal in the <COUNTRY> on his behalf against the refusal of asylum. This appeal was successful. The Adjudicator upheld his claims on 13 March 1989 (see paragraphs 71-72 below). The applicant was subsequently allowed to return to the <COUNTRY> on 28 August 1989, where he was granted exceptional leave to remain initially for twelve months and thereafter until 22 March 1992. He made a further application for asylum in October 1989 which is still under consideration. F. The applicants’ judicial review proceedings The first three applicants instituted proceedings before the High Court seeking leave to apply for judicial review of the Secretary of State’s refusal to grant asylum. Their applications were refused by a single judge on 21 August 1987. Further applications to a single judge in the Court of Appeal were also rejected on the same day. The Home Office refused to defer the removal of the first three applicants, scheduled for the next day, to enable applications to be made to a full Court of Appeal on Monday 24 August. Applications were then made to the Duty Judge of the High Court on the morning of 22 August (a Saturday) alleging that the Secretary of State’s refusal to defer removal unreasonably denied the first three applicants’ right to renew their applications to the Court of Appeal. The Duty Judge accepted the submission and issued an injunction against their removal. On 26 August 1987 the Court of Appeal granted the applicants leave to apply for judicial review of the Secretary of State’s decision. After the refusal by the Secretary of State of the fourth and fifth applicants’ application for asylum they too instituted proceedings for judicial review and were granted leave to apply. All five applications were dismissed by the High Court on 24 September 1987 by Mr Justice McCowan. On appeal, however, the Court of Appeal quashed the decisions refusing asylum on 12 October 1987. The Secretary of State then appealed to the House of Lords which, on 11 December 1987, gave judgment in his favour (R. Secretary of State for the Home Department, ex parte Sivakumaran and conjoined appeals [1988] 1 All England Law Reports 193). The applicants’ case before the House of Lords concerned the proper interpretation of Article 1 (A)(2) of the 1951 Refugee Convention as amended which defines a refugee as a person who has a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...". The House of Lords found that the test was an objective one and that there has to be demonstrated a reasonable degree of likelihood, or a real and substantial risk, that the person will be persecuted if returned to his own country. The evidence before the House of Lords confirmed that in reaching his decision not to grant asylum the Secretary of State had applied the test in the 1951 Refugee Convention. In the course of the judgment the following opinions were delivered: Lord Keith of Kinkel: "The terms of [the Secretary of State’s] decision letters make it clear that he has proceeded on the basis of the objective situation in <COUNTRY> as understood by him. The affidavit of Mr Pott, an official of the Home Office, indicates that the Secretary of State took into account reports of the refugee unit of his department compiled from sources such as press articles, journals and Amnesty International publications, and also information supplied to him by the Foreign Office and as a result of recent visits to <COUNTRY> by ministers. It is well known that for a considerable time <COUNTRY>, or at least certain parts of that country, have been in a serious state of civil disorder, amounting at times to civil war. The authorities have taken steps to suppress the disorders and to locate and detain those responsible for them. These steps, together with the activities of the subversives, have naturally resulted in painful and distressing experiences for many persons innocently caught up in the troubles. As the troubles occurred principally in areas inhabited by Tamils, these are the people who have suffered most. The Secretary of State has in his decision letters expressed the view that army activities aimed at discovering and dealing with Tamil extremists do not constitute evidence of persecution of Tamils as such. This was not disputed by counsel for any of the applicants, nor was it seriously maintained that any sub-group of Tamils, such as young males in the north of the country, were being subjected to persecution for any Convention reason. It appears that the Secretary of State, while taking the view that neither Tamils generally nor any group of Tamils were being subjected to such persecution, also considered whether any individual applicant had been so subjected and decided that none of them had been. Consideration of what had happened in the past was material for the purpose of assessing the prospects for the future. It was argued that the Secretary of State’s decision letters did not clearly indicate that he had applied the ‘real and substantial risk’ test, but left it open that he might have applied a ‘more likely than not’ test. But there is clearly to be gathered from what the Secretary of State has said that in his judgment there existed no real risk of persecution for a Convention reason." Lord Templeman: "In order for a ‘fear’ of ‘persecution’ to be ‘well-founded’ there must exist a danger that if the claimant for refugee status is returned to his country of origin he will meet with persecution. The Convention does not enable the claimant to decide whether the danger of persecution exists. The Convention allows that decision to be taken by the country in which the claimant seeks asylum. Under the [Immigration] Act of 1971 applications for leave to enter the <COUNTRY>, including applications based on a claim to refugee status, are determined by the immigration authorities constituted by the Act. By the Rules made under the Act the appropriate authority to determine whether a claimant is a refugee is the Secretary of State. The task of the Secretary of State in the present proceedings was and is to determine in the case of each appellant whether the appellant will be in danger of persecution if he is sent back to <COUNTRY>. Danger from persecution is obviously a matter of degree and judgment. The Secretary of State accepts that an appellant who fears persecution is entitled to asylum in this country unless the Secretary of State is satisfied that there is no real and substantial danger of persecution. The Secretary of State has concluded that there is no real and substantial danger of persecution ... In the present case an examination of the decision-making process does not disclose any error on the part of the Secretary of State or justify the court in contradicting his view that the applicants will not be in danger of persecution if they are returned to Sri-Lanka." Lord Goff of Chieveley: "First, I respectfully agree with my noble and learned friend Lord Keith, for the reasons given by him, that the requirement that the applicant’s fear must be ‘well founded’ means no more than that there has to be demonstrated a reasonable degree of likelihood of his persecution for a Convention reason; indeed, I understand the submission of counsel for the Secretary of State, that there must be a real and substantial risk of persecution, to be consistent with that interpretation. Second, it is not to be forgotten that the Secretary of State has in any event an overriding discretion to depart from the immigration rules and admit an applicant for refugee status if he considers it just to do so. Third, I am with all respect unable to agree with the view expressed by Sir John Donaldson MR that different tests are applicable under Art. 1 and Art. 33 of the Convention (see [1987] Weekly Law Reports (WLR) 1047 at 1051). Article 33 (1) provides as follows: ‘No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’ Sir John Donaldson MR suggested that, even if the Secretary of State decides that an applicant is a refugee as defined in Art. 1, nevertheless he has then to decide whether Art. 33, which involves an objective test, prohibits a return of the applicant to the relevant country. I am unable to accept this approach. It is, I consider, plain, as indeed was reinforced in argument by counsel for the [United Nations High Commissioner for Refugees] with reference to the travaux préparatoires, that the non-refoulement provision in Art. 33 was intended to apply to all persons determined to be refugees under Art. 1 of the Convention. I cannot help feeling, however, that the consistency between Arts. 1 and 33 can be more easily accepted if the interpretation of well-founded fear in Art. 1 (A)(2) espoused by the Secretary of State is adopted rather than that contended for by the High Commissioner." Following this decision the solicitors acting on behalf of all five applicants wrote to the Home Office indicating that they would be making further representations and that they would be applying to the European Commission of Human Rights seeking an indication under Rule 36 of its Rules of Procedure. They also sought the Home Office’s confirmation that no steps would be taken against their clients for seven days, which confirmation was given. The Commission refused the applicants’ request for an indication under Rule 36 on 18 December 1987. Representations that they should not be removed were also made by the British Refugee Council, UKIAS and a Member of Parliament at the request of the Tamil Action Committee U.K. The Secretary of State considered that asylum candidates who failed to qualify for refugee status should be returned to <COUNTRY> unless there were strong compassionate circumstances in any particular case. In the applicants’ case he did not consider that such compassionate circumstances existed. G. The applicants’ subsequent appeals under Section 13 of the Immigration Act 1971 Following the applicants’ removal to <COUNTRY> their solicitors lodged an appeal against the asylum refusals to an Adjudicator in the <COUNTRY>, pursuant to section 13 of the Immigration Act 1971. They filed voluminous documentary material concerning the past and present situation for Tamils in <COUNTRY>. None of this material was challenged by the Secretary of State’s representatives and no other material upon which the latter based his decisions to refuse asylum was put before the Adjudicator. In a decision of 13 March 1989 the Adjudicator accepted the applicants’ claim that they had left <COUNTRY> for fear that as young Tamils they were at risk of, inter alia, "interrogation, detention and even physical harm". He largely believed the accounts given by the applicants of their personal situations: - as regards the first applicant, the raid on the family business, the death of his cousin, his arrests and detention in 1986 and later, on his return to <COUNTRY>, his interrogation by the police (but not his claim to membership of PLOTE); - as regards the second applicant, his family situation, the alleged detention and assault, destruction of his home and, on his return to <COUNTRY>, his arrest and ill-treatment in Jaffna; - as regards the third applicant, his arrests, interrogations and death of his brother (but not his claim to membership of the LTTE); - as regards the fourth applicant, the destruction of his family home by shelling, the incidents he witnessed and, on his return to <COUNTRY>, his detention several times due to his lack of an identity card; - as regards the fifth applicant, the arson of his home, the shooting dead of two of his brothers and, after his return to <COUNTRY>, the arrest of his family and relatives. The Adjudicator also accepted that in general the victims of ill-treatment at the hands of Sri Lankan forces had been young male Tamils and that excessive force had been used against non-combatants in the North by both Sri Lankan armed forces and the IPKF afterwards. Finally he concluded that the applicants had had a well-founded fear of persecution and he held, inter alia, as follows: (1) that they were all entitled to asylum at the time of the Secretary of State’s decision; (2) that the circumstances since that time had not materially changed; (3) that the Secretary of State’s decisions in respect of all the applicants were not in accordance with the law; (4) that the applicants’ appeals were accordingly allowed; and (5) that they should be returned to the <COUNTRY> with the minimum of delay. The Secretary of State’s appeal to the Immigration Appeal Tribunal was rejected on 19 April 1989 as being out of time, the fourteen day time-limit for lodging appeals having been missed due to an administrative error. On 12 May 1989 the Secretary of State applied for judicial review of the Tribunal and Adjudicator’s decisions. In particular he challenged the lawfulness or reasonableness of the directions that the applicants be returned to the <COUNTRY>. Leave for judicial review was granted by Mr Justice McCowan on 17 May 1989 and the case was heard on 11 July 1989 by Lord Justice Lloyd and Mr Justice Auld. The High Court upheld the decision of the Immigration Appeal Tribunal. On 31 July 1989 the Secretary of State applied for a stay of execution against the return of the five applicants pending a possible appeal against the refusal of judicial review. This application was rejected on 31 July 1989. On 17 May 1990 the Court of Appeal dismissed an appeal by the Secretary of State against the finding by Mr Justice Auld in the above proceedings that Mr Vilvarajah and Mr Skandarajah were entitled to raise their asylum claim on appeal to the Adjudicator notwithstanding the fact that they had first presented forged Malaysian passports and sought leave to enter as visitors (R Immigration Appeal Tribunal and Another, ex parte Secretary of State for the Home Department [1990] I Weekly Law Reports 1126). H. The situation in <COUNTRY> <COUNTRY> has a population of 1 million, of which 74% are Sinhalese and 18% are Tamil Hindus. The Tamils are concentrated in particular areas, and in the northern peninsula of Jaffna account for over 90% of the population. The history of the ethnic conflict between Tamils and Sinhalese goes back for generations, with Sinhalese, anti-Tamil chauvinism being a major factor in Sri Lankan politics since 1948. One result of the anti-Tamil sentiment in <COUNTRY> has been a series of pogroms against Tamil communities, particularly since 1956, and which increased dramatically in 1983, triggered off by the killing of thirteen Sri Lankan soldiers by a Tamil liberation group. A state of emergency was proclaimed which is still in force. This resulted in considerable governmental violence against the Tamil community, including organised massacres tolerated, if not approved of, by the Government. Following an Accord which was signed between <COUNTRY> and <COUNTRY> on 29 July 1987 the Indian Army entered Tamil areas with a view to protecting the Tamil community and the Sinhalese forces were to be returned to barracks. However, the IPKF became involved in fighting Tamil extremists who rejected the Accord. Incidents of arrest, arbitrary detention, torture and destruction were reported, especially in October and November 1987, with indiscriminate shelling and shooting in villages and towns in the north. There was a siege of Jaffna town during which it was estimated that some 2,000-5,000 civilians were killed by the IPKF with a high level of atrocities committed during the assault on the town and thereafter. Identity cards were indispensable for Tamils at this time, not only a Sri Lankan identity card, but also a card issued by the IPKF for anyone in the north, in order to avoid the risk of summary detention. When the applicants were returned to <COUNTRY> in February 1988 reports of civil disturbance were still rife. The respondent Government analysed the situation as follows: they accepted that there was widespread disruption and violence, particularly in the north and east of <COUNTRY>, although large parts of the country remained quiet. The disturbances seem to have eased off in December 1987. Having regard to the July 1987 Accord they considered that the Sri Lankan and Indian Governments were firmly committed to the restoration of law and order, civil rights for all communities and the democratic election of regional representatives. They were also aware of the voluntary repatriation of a large number of <COUNTRY> Tamils, mostly having taken refuge in <COUNTRY>, under a scheme organised by the United Nations High Commissioner for Refugees ("UNHCR") in response to provisions in the Accord to this effect. Under the UNHCR scheme which was begun in late December 1987, 2,746 Sri Lankans had been repatriated by 11 February 1988. By August 1988 the total number of Sri Lankans voluntarily repatriated under this scheme was more than 23,000. The UNHCR has estimated that a further 12,000 had made their own arrangements to return voluntarily to <COUNTRY> by August 1988. Some Western European countries were also beginning to send Tamils back to <COUNTRY> during the period August 1987 - February 1988 (e.g. the <COUNTRY> and <COUNTRY>). Other countries had a policy of not returning Tamil asylum-seekers at this time (e.g. Federal Republic of <COUNTRY> and <COUNTRY>). In December 1987 Amnesty International, the British Refugee Council and the UNHCR each urged the respondent Government not to send any Tamils back to <COUNTRY> in view of the instability at that time, the uncertain effect of the July Accord and reports of human rights violations by both the Sri Lankan security forces and the IPKF. A report by the Asia Committee of the British Refugee Council dated 15 December 1987 noted that there was widespread devastation of property as well as food and health problems. Although the situation had slightly eased since the beginning of November 1987, the view was maintained that the whole of the majority Tamil areas was subject to guerilla attack, and counter-attack by the IPKF, and that little resembling normal life was possible. Sources of information used in assessing the applicants’ asylum claims The information available to the Secretary of State about the situation in <COUNTRY> came from numerous sources, including reporting telegrams from the British High Commission in Colombo and advice from the Foreign and Commonwealth Office, information and documentary evidence from thousands of asylum applicants from <COUNTRY>, frequent contact with representatives of UNHCR, press articles, journals and reports from organisations like Amnesty International directly concerned with the situation in <COUNTRY>. The Foreign and Commonwealth Office also supplied information derived from diplomatic representatives about developments in <COUNTRY>. In addition, Mr Timothy Renton MP, Minister of State at the Home Office, visited <COUNTRY> from 10-14 September 1987. He was accompanied by the most senior official in the Immigration and Nationality Department, who had overall responsibility for asylum policy as well as the Head of the South Asian Department in the Foreign and Commonwealth Office. In the course of his visit he met President Jayawardene and other government Ministers. He visited Jaffna and Trincomalee, meeting local officials, members of the <COUNTRY> Armed Forces, citizens, committees and representatives of the LTTE.

Nepal, France, Malaysia, Sri Lanka, Canada, Germany, Netherlands, Italy, India, Norway, United Kingdom

6

Mrs Antonia Scopelliti lives in Reggio di Calabria. On 10 December 1980 she instituted proceedings against the A.N.A.S. (Azienda Nazionale Autonoma Strade - National Highways Corporation) and the Ministry of Public Works in the Catanzaro District Court. She sought compensation for damage deriving from the unauthorised occupation by the A.N.A.S. of approximately 1,000 m2 of land belonging to her, which had been used to improve a trunk road. The case was entered on the list on 15 December 1980 and a first hearing was held on 27 January 1981. On that date the investigating judge ordered an expert report and set the following hearing down for 17 February 1981. This hearing had to be postponed - on account of the failure to notify the order to the expert; the hearing scheduled for 10 March 1981 was also postponed. On 24 March 1981 the expert took the oath and was given ninety days within which to file his report. He did not comply with this time-limit, with the result that the proceedings were adjourned on a number of occasions (7 July 1981, 12 January, 9 March, 20 April, 11 May and 13 July 1982). The expert submitted his report on a date which has not been specified, prior to the hearing on 14 December 1982, which was adjourned, as were those set down for 15 March and 22 April 1983. The case was referred to the competent chamber of the District Court on 3 May 1983. The A.N.A.S., the defendant, filed its final submissions on 10 November 1983. Subsequently the hearings set down for 23 November 1983, 27 June and 7 November 1984, 27 March and 27 November 1985, 26 February, 16 April, 2 July and 3 December 1986 were all adjourned at the joint request of the parties. According to the applicant, these delays were the result of the continual changes in the composition of the competent chamber, but the Government deny this. In the meantime she had sent two letters requesting that her case be heard more rapidly, one on 24 September 1984 to the President of the Catanzaro District Court and the other on 22 January 1986 to the Principal State Counsel at the Catanzaro Court of Appeal. On 6 and 16 February 1987 the applicant filed her final submissions. On 18 February judgment was reserved. On 5 October 1987 the Catanzaro District Court gave judgment allowing the applicant's claims and ordering the A.N.A.S. to pay her 212,517,000 lire. This sum represented 17,460,000 lire for the market value of the land in question, 100,605,000 lire for the damage caused to the land adjoining the road and 94,452,000 lire for the prejudice deriving from the unauthorised occupation and the unavailability of the property. In addition, she was awarded a total of 5,085,000 lire for her costs and lawyers' fees. The District Court's decision, which was lodged with the registry on 14 January 1988, became final on 1 March 1989.

5

PARTICULAR CIRCUMSTANCES OF THE CASE Mr Jan Wassink, a <COUNTRY> national, currently resides at Klazienaveen in the <COUNTRY>. On 15 November 1985 the Burgomaster of Emmen ordered Mr Wassink’s emergency confinement in a psychiatric hospital pursuant to section 35 (b) of the Mentally Ill Persons Act 1884 (Krankzinnigenwet, see paragraph 16 below). His decision was based on a medical report drawn up the same day by a psychiatrist, Dr S., according to which there were serious grounds for believing that the applicant suffered from a mental disorder representing an immediate danger to himself, to others and to public order. Mr Wassink had already threatened members of his family and attacked a neighbour in her house. On 19 November 1985 the Crown Prosecutor (Officier van Justitie) requested the President of the District Court (Arrondissementsrechtbank) of Assen to extend the applicant’s confinement. In addition to the file attached to this application, the President received a police report dated 18 November 1985 containing the statements of various witnesses and of Mr Wassink’s wife, and a memorandum, of the same date, setting out the opinion of the applicant’s doctor, Dr R. On 20 November, in the presence of Mr Jongeneelen, Mr Wassink’s "confidential counsellor" (patientenvertrouwenspersoon), the District Court President interviewed the applicant together with a psychiatrist, Dr He then consulted three other persons by telephone - Dr R., Mr Wassink’s wife and another doctor, Dr H. - and made a brief note of their statements. Again by telephone, he gave a summary of the resulting information to Mr Jongeneelen. In a letter of 9 January 1986, Mr Jongeneelen told the applicant’s lawyer that this conversation, which had lasted some ten minutes, had taken place at his request and had given him (Mr Jongeneelen) an opportunity to put forward his views; a few days after the conversation, the President had communicated the whole file to him. On 25 November 1985 the President ordered the continuation of the applicant’s confinement pursuant to sections 35 (i) and 35 (j) of the Mentally Ill Persons Act. Referring to the medical report by Dr S. (see paragraph 9 above) and the statements of Mr Wassink, Dr. and the three persons whom he had questioned by telephone (see paragraph 11 above), he considered that, because of his mental illness, the applicant was an immediate danger to himself, to others and to public order. The President added that it was clear from the statements which he himself had obtained and those contained in the police report of 18 November 1985 that Mr Wassink had already caused considerable disturbance to his neighbours. It was therefore to be feared that, as he was unaware of the effect of his actions on others, he would continue his unacceptable behaviour if he were to return home. Mr Wassink left the hospital on 20 December 1985. On 31 December the President of the District Court sent to the applicant’s lawyer, at the latter’s request, various documents from the file, including the note that he had made after interviewing Mr Wassink and hearing the views of the persons whom he had questioned by telephone. He explained that circumstances relating to the organisation of the court made it impossible to arrange for a registrar to be present in every case of emergency confinement. There were three large psychiatric hospitals within the court’s jurisdiction and it was a small court. On 24 January 1986 the applicant filed an appeal on points of law with the Supreme Court (Hoge Raad) against the order of 25 November 1985. He complained that the President of the District Court had not specified sufficiently the nature of the danger which his mental illness represented for himself and for public order, that the President had held a hearing without a registrar’s being present to draw up a record and, finally, that, before making the order, the President had failed to communicate to him the text of the statements of the persons whom he had telephoned, thereby depriving the applicant of any opportunity to react thereto. In his submissions of 11 March 1986, the Attorney General at the Supreme Court (Procureur-Generaal bij de Hoge Raad) expressed the view that the second of these grounds (and only the second) was well-founded. However, on 18 April 1986 the Supreme Court declared the appeal inadmissible, finding that Mr Wassink no longer had any interest in having the contested order quashed since the maximum period for an emergency confinement had already expired.

Netherlands

On 13 September 2007, at the age of fifteen, the applicant was arrested in Qaqortoq, <COUNTRY>, charged with rape and homicide under section 216, subsection 2, and section 237 of the Danish Penal Code ( Straffeloven ) committed on 26 May 2007 against an eighty-five year-old lady, who lived in Aalborg, <COUNTRY>, where the applicant at the relevant time attended a youth school institution. The case received massive media coverage, both before and after the police investigation that led to the applicant being charged. The applicant was brought before Qaqortoq County Court (Qaqortoq Kredsret) and pleaded guilty to both charges. He was ordered to be held in pre-trial detention for four weeks. A request by the lay representative (bisidder) that the applicant be placed in an institution in <COUNTRY> during the investigation was disregarded. After a week, the applicant was transferred to <COUNTRY> and brought before the City Court in Aalborg (Retten i Aalborg ) which on 20 September 2007, by virtue of section 762, subsection 2(i), of the Administration of Justice Act (Retsplejeloven ), extended the detention on remand until 11 October 2007 and until his placement in an appropriate home or institution could be secured as set out in section 765, subsections 1 and 2(iii) of the Administration of Justice Act. It further decided that the applicant should undergo a forensic psychiatric examination. The latter was formally requested by the public prosecutor on 23 October 2007 and commenced at the Forensic Psychiatric Department at Aarhus University Hospital on 21 November 2007. On 21 September 2007 the applicant was transferred to a closed young offender institution. On 10 October 2007 he was transferred to a secure residential institution called “Grenen” for young people aged between 12 and 17 who had committed a crime or otherwise displayed dangerous conduct. One of the objects of that particular institution was that the young people placed there were given such care, upbringing and help with development that they would be able to function in society later on. The young people had a well-structured daily routine with education, workshops and leisure-time activities, and with limit-setting adults with strong contact skills to support them. The applicant’s detention in the institution was extended by four weeks by the City Court in Aalborg on 11 October, 8 November and 6 December 2007. In a letter of 21 December 2007 the prosecution informed the applicant’s counsel that the investigation was by and large complete and awaited only a report from the forensic psychiatric examination. The applicant’s detention was extended for four weeks on 3 January 2008. On 22 January 2008 the forensic psychiatric report ( retspsykiatrisk erklæring ) was submitted. It concluded that the applicant was covered by Article 16, subsection 2, of the Penal Code concerning mentally ill persons and recommended that a judgment be passed to place the applicant in an appropriate institution for patients with a far-reaching mental handicap. On 31 January 2008 the applicant’s detention was extended, inter alia, in order for the Medico-Legal Council ( Retslægerådet ) to be heard on the forensic psychiatric report. The City Court in Aalborg extended the applicant’s detention by four weeks on 28 February, 27 March, 24 April, 22 May, 19 June, 17 July and 14 August 2008. On the latter two dates the domestic courts added that the conditions for extending the detention were fulfilled, also under section 768a of the Administration of Justice Act, which entered into force on 1 July 2008 (see below). In the meantime, on 14 March 2008 the report from the Medico ‑ Legal Council was submitted, which concluded that the applicant was considered to fall within section 16, subsection 2, of the Penal Code. Moreover, if the applicant were convicted, a sentence of placement in an institution for persons with extensive mental disabilities as provided by section 68, second sentence, was recommended as the most expedient measure to prevent further similar offences. As a standard practice regarding persons falling within section 16, subsection 2, of the Penal Code, on 4 April 2008 the public prosecutor requested an opinion from the Joint Council for the Mentally Disabled (Samrådet for udviklingshæmmede) of Aalborg Municipality on the basis of the forensic psychiatric report and the recommendation of the Medico-Legal Council. On 21 April 2008, an opinion was received from the Joint Council for the Mentally Disabled, which found that the documentation for considering the applicant to fall within section 16, subsection 2 of the Penal Code was inadequate. It therefore urged a further examination of the case before a decision was made. Accordingly, a new forensic psychiatric report was requested. Originally, the trial was scheduled to commence on 11 September 2008, but it had to be re-scheduled for 13 and 14 November 2008 pending the completion of the second forensic psychiatric report. On the former date, for the first time the applicant objected to an extension of the pre-trial detention. He referred to the fact that section 768a of the Administration of Justice Act, which had entered into force on 1 July 2008, specifically limited pre-trial detention of persons under eighteen years to a period not exceeding eight months. By decision of 11 September 2008, still by virtue of section 762, subsection 2(i), of the Administration of Justice Act, the City Court in Aalborg extended the applicant’s pre-trial detention until 9 October 2008 and stated: [The applicant] is charged with rape and homicide committed on 26 May 2007. The pre-trial detention is thus justified by a charge of a very serious crime which has also been admitted to by [the applicant], and according to the information available it must be concluded that the reason why the case has not yet come to trial is the need to clarify the most expedient sanction, both in consideration of society and in consideration of [the applicant] himself. Although the length of the pre-trial detention exceeds the period stated as the maximum period in section 768a of the Administration of Justice Act, the court therefore finds that such very particular circumstances ( helt særlige omstændigheder ) apply as to provide a reason for deviating from the maximum period in section 768a, and the request for extension is therefore allowed. On appeal on 19 September 2008 the High Court of Western <COUNTRY> ( Vestre Landsret ), henceforth the High Court, upheld the decision. The applicant did not apply for leave to appeal against the decision to the Supreme Court ( Højesteret ). On 9 October 2008 the City Court in Aalborg extended the applicant’s detention in the closed youth institution by four weeks. On 6 November 2008 the City Court in Aalborg extended the applicant’s detention by another four weeks. It noted that the second forensic psychiatric report had been submitted on 3 November 2008 and that it was of significant importance to hear the Medico-Legal Council in this respect. It repeated that such very particular circumstances applied as to provide a reason for deviating from the maximum period in section 768a of the Administration of Justice and that an extension could not be considered in breach of Article 5 § 3 of the Convention. Accordingly, the trial had to be rescheduled anew. The applicant appealed against the decision to the High Court, which on 14 November 2008 upheld the decision. Leave to appeal to the Supreme Court was refused on 19 December 2008 by the Leave-to ‑ Appeal Board ( Procesbevillingsnævnet ). In the meantime, on 10 December 2008 the second report from the Medico Legal Council was submitted. It concluded that the applicant’s case did not fall under section 16, subsection 2, of the Penal Code, as found in its first report, but under Section 69 of the Penal Code in that his actions had been conditioned by deficient development, reduction or disturbance of mental functions which, from a medical point of view, on the one hand could suggest a sentence to structured, controlled socio-psychiatric treatment, and on the other hand could not rule out ordinary imprisonment. The Medico-Legal Council was unable to point to any other measures under section 68, second sentence, of the Penal Code that were more expedient than ordinary punishment. The Medico-Legal Council did find it relevant though, from a purely medical point of view, to order the applicant to undergo a structured, supervised socio-pedagogical measure as provided for by section 74a of the Penal Code. If such sanction was not feasible, the imposition of ordinary punishment was recommended. Moreover, in the meantime, on 4 and 17 December 2008, and subsequently on 13 January 2009 the City Court in Aalborg extended the applicant’s detention, stating expressly that an extension would not be contrary to Article 5 § 3 of the Convention. The trial had been scheduled to take place on 27 January 2009, and if necessary also on 2 and 4 February 2009. By judgment of 27 January 2009 the City Court in Aalborg convicted the applicant in accordance with the indictment and his own confession. It was established as a fact that the applicant had gained access to the victim’s apartment because he wanted access to a telephone. Having raped the victim, he killed her by inflicting several blows, kicks and knife lesions to the head, neck and body. Thereafter he had left the scene of the crime, walked to town and called the youth school institution to be collected. He did not talk to anybody about the crime until he had been arrested. The applicant was sentenced to eight years’ imprisonment. The City Court refuted the applicant’s complaint about the length of the detention and the length of the trial and stated that even though the proceedings had taken more than sixteen months from the applicant’s deprivation of liberty, their length could not lead to a reduction of the sentence as the completion of the two mental status examinations of the applicant- and the submission of the case to the Medico-Legal Council had been of vital significance for determining the sanction to be imposed. Moreover, it found that the public prosecutor had conducted the proceedings with due diligence. On appeal, on 4 June 2009 the High Court upheld the judgment in its entirety and stated, among other things: “For the reasons stated by the District Court and because the length of the proceedings cannot be attributed to ‘periods of inactivity’ of any importance for sentencing purposes in view of the nature of the case, [the High Court] agrees that the length of the proceedings has not been attributed importance as a mitigating factor. Accordingly, and in view of the very significant gravity of the offences, including the particular ruthlessness exhibited by [the applicant], the fact that the offences were committed in the victim’s own home, and the fact that the victim was a defenceless eighty-five year-old woman, the High Court upholds the sentence of eight years’ imprisonment despite the fact that [the applicant] was only fifteen years old at the time of the offence, see section 82, subsection 1(i), of the Penal Code”. On the same day, the High Court decided that the applicant should remain in alternative detention until the enforcement of the sentence could commence. It appears that the applicant did not submit a request to the Leave ‑ to ‑ Appeal Board for leave to appeal against the High Court judgment to the Supreme Court. B. Relevant domestic law The rules on detention on remand The rules on detention on remand are laid down in part 70 of the Administration of Justice Act ( Retsplejeloven ), which reads in so far as relevant: Section 762 A person charged ( en sigtet ) may be detained on remand when there is a reasonable suspicion that he has committed an offence which is subject to public prosecution, provided that under the law the offence may result in imprisonment for one year and six months or more, and (i) according to information received concerning the suspect’s situation, there are specific reasons for assuming that he will evade prosecution or execution of judgment, or (ii) according to information received concerning the suspect’s situation, there is specific reason to fear that, if at large, he will commit a new offence of the nature described above, or (iii) in the circumstances of the case, there are specific reasons for assuming that the suspect will impede the investigation, in particular by removing evidence or by warning or influencing others. A person charged may also be detained on remand when there are strong reasons for suspecting that he has committed: (i) an offence which is subject to public prosecution which, under the law, may result in imprisonment for six years or more, and it is deemed necessary for law enforcement reasons, according to the information obtained on the gravity of the offence, that the person is not at large ( hensynet til retshåndhævelsen ); or (ii) an offence in violation of section 119(1), section 123, section 134a, section 192a(2), section 218(1), section 222, section 224 or section 225 read with section 218(1) or section 222, section 235(1), sections 244-246, section 250 or section 252 of the Penal Code or violation of section 232 of the Penal Code committed against a child of less than 15 years, in case the offence may be expected, due to the particulars of the seriousness of the circumstances, to be punished with a non-suspended sentence of imprisonment for at least sixty days and due regard for enforcement of the law is found to require that the accused shall not be at large.” Detention on remand may not be imposed if the offence can be expected to result in a fine or imprisonment for a period not exceeding thirty days, or if the deprivation of liberty would be disproportionate to the inconvenience so caused to the life of the person charged, the importance of the case and the legal consequence to be expected if the person charged is found guilty. Section 764 The court shall decide, upon request from the prosecution, if an accused person shall be detained on remand. A request for continued remand detention shall be submitted to the court in writing and the request shall state the detention provision(s) relied on by the prosecutor, the factual circumstances on which the request is based and the most significant investigative steps expected to be taken. ... ... If detention on remand is continued beyond the time limits set out in section 768a, subsections 1 and 2, the [court] must state in its decision the special circumstances of the case which necessitate continued detention on remand ... Section 765 Where the conditions to apply detention on remand are met, but if the purpose of detention on remand may be obtained by less radical measures, the court decides on such measures in lieu thereof subject to the consent of the person charged. The court may thus decide that the person charged shall ... (iii) be placed in an appropriate home or institution ... Section 767 Except for situations where the person charged is not present in <COUNTRY>, the court order must state a period for the pre-trial detention or the measure. The period must be as short as possible and may not exceed four weeks. The period may be extended but not by more than four weeks at a time. The extension is made by court order unless the defendant accepts the extension. Until judgment is rendered in the first instance, the rules of section 764 apply correspondingly to court hearings and court orders about extension of periods. A defendant who is held in pre-trial detention or is subject to another custodial measure does not, however, have to be brought in person before the court if he waives this or the court finds that such attendance will involve undue difficulties. Section 768 Detention on remand or measures in lieu hereof, shall if necessary be terminated by a court order if prosecution is dropped or the conditions for instituting proceedings no longer exist. If the court order finds that the necessary speed has not been used to proceed with the matter and that detention on remand or other measures are not reasonable, the court shall terminate it. Section 768a Unless the court finds that there are special circumstances to the contrary, the maximum period of detention on remand must not be extended for a continuous period of (i) six months, when the accused is charged with an offence that cannot carry a sentence of imprisonment for six years or (ii) one year when the accused is charged with an offence that may carry a sentence of imprisonment for six years or more. Unless the court finds that there are very special circumstances to the contrary, the maximum period of the detention on remand of a juvenile (less than 18 years old) must not be extended for a continuous period of (i) four months, when the accused is charged with an offence that cannot carry a sentence of imprisonment for six years or (ii) eight months when the accused is charged with an offence that may carry a sentence of imprisonment for six years or more. The periods mentioned in subsections 1 and 2 comprise the period until the beginning of the trial at first instance. Section 768a was inserted into the Administration of Justice Act by act no. 493 of 17 June 2008 and entered into force on 1 July 2008 with the aim of reducing lengthy criminal charges and detention on remand. The reasons for the proposal were explained in the general remarks to the Act, inter alia by a reference to a specific Committee Report, 1492/2007, pp. 136-38: “The Committee notes that detention on remand is a particularly serious interference in criminal procedure, and that this especially is the case for persons under 18 years of age. The strain that flows from detention on remand - in the view of the Committee - caused not only by the uncertainty that follows from the charge and the imprisonment, but also uncertainty with respect to the length of the detention and the consequent questions, inter alia , whether the detainee can resume his work or his education after the detention ends, relationships with family and friends, etc. The strain must normally be presumed to grow concurrently with the length of the interference and especially for this reason the length of detention should be limited as far as possible. Against this background, the Committee finds that there is a need for further measures to reduce the length of detention on remand. Considering the serious character of the interference, the Committee further notes that it must be incumbent on the police, the prosecution authorities and the courts that, in the organisation of their work, they pay special attention to expediting these cases in order for detention on remand to be of the shortest possible duration.” As appears from the wording of section 768a, deviation from pre-trial detention periods of defendants under the age of eighteen is only possible if the court finds that “very special circumstances” apply. As explained in more detail in the preparatory notes (see the Official Report on Parliamentary Proceedings 2007-2008 (2nd sitting), Addendum A, p. 2952 (Bill No. L 78)), it depends on a specific assessment of all the circumstances of each case whether there is a basis for deviating from the maximum periods of pre-trial detention, as concerns both charged persons under and over the age of eighteen. When assessing this, the court must start from the reason for detention applied, that is, the reasons for pre-trial detention under section 762, subsection 1(i) (danger of absconding), section 762, subsection 1(ii) (danger of re ‑ offending), or section 762, subsection 2 (public interest) of the Administration of Justice Act. The preparatory notes set out: In case of pre-trial detention pursuant to the said provisions, the requirement of particular circumstances implies that a total assessment must be made on the basis of a strict assessment, both of the circumstances mentioned in section 768 (that is, particularly whether the investigation is being conducted with the requisite expedition) and of the necessity of continuing the detention pursuant to the detention reason applied. The strict attention to the necessity of continuing the detention also implies that the court must pay special attention to the proportionality requirement under section 762(3) of the Administration of Justice Act and, particularly in connection with the detention reason stipulated in subsection (l)(i) (danger of absconding), to the possibility of using alternatives to detention as prescribed in section 765. Concerning the application of alternatives, it should be noted in that connection that the court, the public prosecutor as well as defence counsel should be aware at all times of the need to try to apply alternative detention in cases where that would be an adequate measure. ... In all cases, the offence charged will be of significant importance so that continued detention after the maximum periods stated may particularly be applied in serious criminal cases, that is, in cases of aggravated offences against the person and other cases of particular public interest in which the expected sanction will be several years of imprisonment. Thus, following an overall assessment, the court must make a critical assessment of the necessity of continued pre-trial detention in light of the length of the detention so far. ... In the assessment of the question of continuation of the detention in case of the most aggravated offences, for example in cases of homicide, the most aggravated drugs offences, etc., the nature of the actual aggravated offence will naturally be included in the assessment of whether detention may be continued in excess of the periods stated. Particularly in cases where prosecution has been instituted, and where there is a rather strong suspicion, the criminal nature of a very serious offence may, in addition to the specific reason for detention, be included as an essential factor resulting in a finding that particular circumstances exist in accordance with the provision proposed. Particularly concerning continued pre-trial detention of charged persons under the age of 18 in excess of the maximum periods, the preparatory notes stated the following: Whether pre-trial detention of young people under the age of 18 may occur in excess of the normal periods stated in subsection (2) must normally depend on an assessment corresponding to the one to be made when determining whether there is any basis for deviating from the periods stated in subsection (1), see above. However, the condition for deviating from the periods stated in subsection (2) is qualified, as exceptional circumstances must apply. This pertains to both the circumstances referred to in section 768 of the Administration of Justice Act (that is, particularly whether the investigation is being conducted with the requisite expedition) and to the necessity of continued pre-trial detention in accordance with the reason for detention applied, see above for details. Also the nature of the offence charged will be of significant importance so that continued detention after the maximum periods stated may particularly be applied in very serious criminal cases (that is, in cases of severely aggravated offences against the person and other cases of particular public interest in which the expected sanction will be several years of imprisonment). The rules on mentally deviant perpetrators and the obtaining of mental status reports The Penal Code contains various provisions on the significance of the perpetrator’s mental status at the time of the offence , inter alia : Section 16 (1) Persons who, at the time of the act, were irresponsible on account of mental illness or a state of affairs comparable to mental illness, or who are severely mentally defective, are not punishable. Provided that the perpetrator was temporarily in a condition of mental illness or a state of affairs comparable to mental illness on account of the consumption of alcohol or other intoxicants, he may in particular circumstances be punished. (2) Persons who, at the time of the act, were slightly mentally defective are not punishable, except in particular circumstances. The same shall apply to persons in a state of affairs comparable to mental deficiency. Section 68 Where an accused is acquitted in accordance with section 16 of this Act, the court may decide on the use of other measures which it considers to be expedient for the prevention of further offences. If less extreme measures such as supervision, decisions on place of residence or work, addiction treatment, psychiatric treatment and so on are considered insufficient, the court may decide that the person in question must be taken to a hospital for the mentally ill or to an institution for severe mental defectives, or that he must be put into care suitable for the mentally deficient, or that he must be taken to a suitable home or to an institution where he can receive special nursing or care. Safe custody is possible under the conditions stated in section 70 of this Act. Section 69 Where the offender was, at the time that the punishable act was committed, in a condition resultant upon inadequate development or an impairment or disturbance of his mental abilities, although not of the character referred to in section 16 of this Act, the court may, if considered expedient, decide upon the use of measures such as those referred to in the second sentence of Section 68 above, in lieu of punishment. The Administration of Justice Act contains the following provision on mental status examinations of the perpetrator: Section 809 The defendant must be subjected to a mental status examination when this is found to be of importance for the decision of the case. If he does not explicitly consent to the examination, it can only take place pursuant to a court order. If the defendant is being detained, he cannot be examined without a decision of the court. Medico-Legal Council Mental status reports are prepared by consultants in psychiatry. The cases of forensic psychiatry that are submitted to the Medico-Legal Council (Retslægerådet) for an opinion concern the question of whether, at the time of the offence, the defendant was mentally ill or in a comparable state as stated in section 16 of the Penal Code and questions of determination of the most/more expedient measure, see sections 68 and 69 of the Penal Code. Approximately half of all mental status reports are submitted to the Medico ‑ Legal Council. Cases not submitted to the Medico ‑ Legal Council typically concern less serious crimes and where the examination gives no basis for recommending a special psychiatric measure. The detailed rules for the organisation and work routines of the Medico-Legal Council are laid down in the Rules of Procedure of the Council. Rule 7(1) of the Rules of Procedure provides that: If the written material submitted to the Council is deemed not to provide a sufficient basis for the Council’s assessment of the case, the Council shall inform the submitting authority of what further information will be of importance for such assessment. At the same time, the Council shall state whether it is deemed most expedient that such information is provided: ... through examination of the person in question by one or more of the Council members or experts at the request of the Council. Joint Council for the Mentally Disabled In cases where it is concluded, on the basis of the mental status examination of the perpetrator, that the perpetrator is slightly retarded (‘mentally disabled’), it is standard practice for the public prosecutor of the North Jutland Police, who conducted the criminal proceedings against the applicant before Aalborg District Court, to request an opinion from the Joint Council for the Mentally Disabled (Samrådet for Udviklingshæmmede) of Aalborg Municipality. The Joint Council for the Mentally Disabled, which includes a forensic psychiatrist and a psychologist as well as a representative of the Danish Prison and Probation Service, assesses the conclusion of the mental status report on the perpetrator’s mental status and recommends the sanction which should be imposed on the perpetrator, including the type of institution in which the perpetrator should be placed.

Greenland, Denmark

A. Mrs Stec On 18 January 1989 Mrs Stec injured her back at work and was unable to continue working. She was awarded Reduced Earnings Allowance (REA – see paragraph 26 below) from 24 January 1990. On 13 March 1993 she reached the age of 60 and as from 31 March 1996 her award of REA was replaced by an award of Retirement Allowance (RA – see paragraph 30 below). The applicant appealed against this decision on the ground of sex discrimination to the Trent Social Security Appeals Tribunal (SSAT), which allowed her appeal on 4 October 1996, and the adjudication officer subsequently appealed to the Social Security Commissioner (“the Commissioner”). The Commissioner joined Mrs Stec’s case to those of the other three present applicants, and also to that of Mrs Hepple. Having heard arguments on 11 and 12 December 1997, the Commissioner decided on 8 May 1998 to refer the following questions to the European Court of Justice (ECJ): “Does Article 7 of Council Directive 79/7/EEC permit a member State to impose unequal age conditions linked to the different pension ages for men and women under its statutory old-age pension scheme, on entitlement to a benefit having the characteristics of Reduced Earnings Allowance under a statutory occupational accident and disease scheme, so as to produce different weekly cash payments under that scheme for men and women in otherwise similar circumstances, in particular where the inequality: (a) is not necessary for any financial reason connected with either scheme; and (b) never having been imposed before, is imposed for the first time many years after the inception of the two schemes and also after 23 December 1984, the latest date for the Directive to be given full effect under Article 8? If the answer to Question 1 is Yes, what are the considerations that determine whether unequal age conditions such as those imposed in Great Britain for Reduced Earnings Allowance from 1988 to 1989 onwards are necessary to ensure coherence between schemes or otherwise fall within the permitted exclusion in Article 7? ...” In his order of reference the Commissioner observed: “On the main issue, it is apparent from the information before me (and the adjudication officers so concede) that the imposition after 1986 of unequal age conditions on REA for the first time was not necessary to maintain the financial equilibrium or coherence (in so far as that word is understood in a financial sense) of the UK social security schemes. It is also apparent (and on the information before me I so decide as a fact) that such imposition was not necessary to enable the <COUNTRY> to retain the different pension ages under its old-age scheme. That difference had coexisted with the Industrial Injuries Scheme ... for nearly 40 years from 1948 without it, and REA could simply have been left as it was, or a non-discriminatory cut-off age adopted, without upsetting the pension system as it had always operated. The real question therefore is the more difficult one of whether a government which considers it a costly anomaly to go on paying a benefit such as REA to people too old to work is permitted to impose a new cut-off at unequal ages, claiming the benefit of the exclusion in Article 7 for the ‘possible consequences for other benefits’ having regard to what was said in the [ECJ’s] judgment in Graham , on the ground that the ages selected are the same as those for the pension, and ... the government take the view as a matter of policy that the income-replacement functions of REA should be performed after pension age by the pension, plus the very much smaller ‘Retirement Allowance’ instead.” The ECJ gave judgment on 23 May 2000 (see paragraph 41 below). On 31 July 2000 the Commissioner, following the ECJ’s ruling, struck out the applicants’ cases where they were the appellants before him and allowed the appeals where the adjudication officers had been the appellants. B. Mr Lunn On 11 November 1973 Mr Lunn suffered a work-related injury to his right hand, as a result of which he had to stop working. From 12 May 1974 he received Special Hardship Allowance, which was converted to REA from 1 October 1986. On 19 May 1988 he reached the age of 65 and from May 1993, when he turned 70, he received a statutory retirement pension. On 26 March 1996 an adjudication officer reviewed the award of REA and decided that, with effect from 31 March 1996, it should be replaced by an award of RA, paid at approximately 25% of the REA rate. The applicant appealed on the ground that a woman in the same circumstances would have been treated as having retired on or before 19 May 1988 and would have been entitled to a frozen rate of REA for life, a more valuable benefit. On 24 September 1996 the Stockport SSAT dismissed his appeal, and Mr Lunn appealed to the Commissioner, who referred the case to the ECJ (see paragraphs 17-19 above). Mrs Spencer Mrs Spencer suffered a work-related injury to her neck on 17 July 1966. She was awarded Special Hardship Allowance from 15 January 1967 and from 1 October 1986 this was converted to an award of REA. Her sixtieth birthday was on 11 December 1986 and she received a retirement pension from 23 December 1986. It was decided on 10 May 1993, with effect from 11 April 1988, to freeze for life her award of REA at 28 pounds sterling (GBP) per week. The applicant appealed to the Bolton SSAT on the ground that, had she been a man, she would have continued to receive unfrozen REA. The SSAT allowed her appeal on 30 November 1994, and the adjudication officer appealed to the Commissioner, who referred the case to the ECJ (see paragraphs 17-19 above). Mr Kimber On 12 March 1982 Mr Kimber injured his back at work and was unable to continue working. He was awarded Special Hardship Allowance from 15 September 1982, converted to REA from 1 October 1986. He reached the age of 65 on 30 September 1989 and received a retirement pension from 29 September 1994. On 29 April 1996 an adjudication officer reviewed his award of REA and decided that with effect from 31 March 1996 it should be replaced by an award of RA. The applicant appealed to the Eastbourne SSAT, on the ground that a woman in his circumstances could have chosen to have been treated as retired from 10 April 1989, and so would have been entitled to frozen REA for life, a more valuable benefit than RA. The SSAT allowed his appeal on 2 October 1996 and the adjudication officer appealed to the Commissioner, who referred the case to the ECJ (see paragraphs 17-19 above).

United Kingdom

6, 10

On 2 April 1980 the applicant and one of the associations he runs, Helvetia Nostra, lodged a complaint alleging defamation against R., who had written a letter published in the letters column of the newspaper L’Est vaudois under the headline "Franz Weber is fooling you". The letter contained the following passages: "Like all your readers, no doubt, I recently found in my letter-box another of the begging letters sent out by unscrupulous people when they want to cadge money. Everyone is getting really sick of it and I think Franz Weber would do better to go and knock down the factory chimneys which crowd the skyline of Basle and protect his beloved captive seals in the zoo than to pester us with his initiatives, which he lives on at our expense - in case you didn’t know. If Mr Weber had the courage to show us his tax returns, you would be amazed. But the list of municipal taxpayers is not published and it is easy to hide behind that sort of censorship and live by devious means, sponging off decent people who still believe that these drop-outs have their uses and in so doing demonstrate their distrust of the whole country’s democratically - and how democratically! - elected authorities. May everyone have the courage to tell Helvetia Nostra (there’s a fine name to fleece you with!) that we have had enough of playing into the hands of people who sponge off us and whose behaviour borders on the criminal. ..." Interviewed by the investigating judge (juge informateur) of the Vevey-Lavaux district, R.acknowledged the virulence of these accusations and attributed it to a nervous breakdown he had suffered at the time. Mr Weber refused all conciliation. In order to establish the truth of his allegations, R.then requested Mr Weber to produce a number of documents relating to his and his associations’ financial position. On 4 November 1980 the investigating judge ordered disclosure of the Helvetia Nostra association’s and the Franz Weber Foundation’s articles and their accounts for the previous two financial years. On 22 January 1981, having still not received them, he ordered their sequestration, but on 13 April 1981 he had to renew the order, as the applicant had not complied. In May 1981 Mr Weber forwarded Helvetia Nostra’s accounts in a sealed envelope but not those of the Foundation. Two subsequent sequestration orders were not executed. The applicant was dissatisfied with the way in which the investigating judge was proceeding and on 1 March 1982 he lodged a criminal complaint alleging misuse of official authority and coercion, but the investigating judge of the Canton of Vaud refused to take any action, whereupon Mr Weber challenged the Cantonal Court en bloc. R.was charged with defamation (Article 173 of the Criminal Code) and on 1 March 1982 was committed for trial at the Vevey district police court. He appealed against the order committing him for trial, but the Indictment Division (tribunal d’accusation) dismissed the appeal on 25 May 1982. On 2 March 1982 at a press conference in Lausanne the applicant informed the public that defamation proceedings had been taken against R., that orders had been made for the production and then for the sequestration of the associations’ accounts and that these had been handed over under seal. He also stated that he had lodged a challenge and a complaint against the investigating judge. Mr Weber had already divulged the first three items of information at a press conference in Berne on 11 May 1981, during which he denounced "the plot hatched against him by the Vaud authorities in order to intimidate him". A. The proceedings before the President of the Criminal Cassation Division of the Vaud Cantonal Court On 3 March 1982 the daily newspapers Gazette de Lausanne, 24 heures and Tribune/Le Matin reported what the applicant had said. Under Article 185 § 3 of the Vaud Code of Criminal Procedure, the President of the Criminal Cassation Division of the Vaud Cantonal Court commenced of his own motion a summary investigation for breach of the confidentiality of a judicial investigation. In a letter of 10 March 1982 he ordered Mr Weber to provide information within ten days about what exactly he said on 2 March 1982. The applicant replied on 22 March 1982. He denied having given any "information about the investigation proceedings" and relied on Articles 6 and 10 (art. 6, art. 10) of the Convention. On 27 April 1982 the President of the Cassation Division imposed a fine of 300 Swiss francs on him, together with a probationary period of a year for the purposes of deletion of the fine from the cantonal register. He based his decision on the following grounds: "Mr Weber relied on Article 6 (art. 6) of the European Convention on Human Rights (ECHR) and impugned the procedure provided for in Article 185 § 3 of the Code of Criminal Procedure (CCP), which is the same as the one provided for in Articles 384 § 2, 386 § 2 and 336 CCP. This complaint is irrelevant, as Article 6 (art. 6) ECHR does not apply to the summary investigation proceedings provided for in respect of these breaches of procedure under cantonal law, reserved by Article 335 § 1, second sub-paragraph, of the Criminal Code (CC), because it is not a question of a ‘criminal charge’. ... Mr Weber also submitted that he did not disclose any confidential matters on 2 March 1982, since the matters in question had already become public knowledge as a result of his press conference of 11 May 1981. Since no judicial investigation was commenced following the press conference of 11 May 1981 and as Mr Weber did not have any occasion to avail himself of his right to a hearing, there is no need to deal with it in the present proceedings. Furthermore, criminal proceedings will shortly be time-barred (s. 12 of the Vaud Criminal Justice Act, s. 4 of the Minor Offences Act, s. 109 CC). It is true that as a result of the press conference of 11 May 1981 the matters dealt with at the press conference of 2 March 1982 were public knowledge, but that is of no importance as breaching the confidentiality of an investigation means ‘disclosing’ a matter which ought to be kept confidential. It is therefore of little importance that the matter which was to be kept confidential was known to a limited or indefinite number of people because confidentiality had already been breached by a third party or by the same person. The actus reus of the offence punishable under Article 185 CC is therefore made out. This offence is punishable even if it has been committed inadvertently (s. 4 of the Vaud Criminal Justice Act, s. 6 of the Minor Offences Act). In the instant case it is plain that Mr Weber acted deliberately. By disclosing that he had challenged the investigating judge, Mr Weber revealed that there was an investigation, but it may be doubted whether that was ‘information about the investigation’. Disclosing that a criminal complaint has been lodged - which may amount to a different offence - is not caught by Article 185 CC, more particularly where it has been decided to take no action on the complaint. Mr Weber himself admits that the breach of the confidentiality of the investigation was intentional. His submission based on a kind of necessity is devoid of merit since it was open to him to appeal to the Indictment Division against the orders for the sequestration of the Franz Weber Foundation’s and the Helvetia Nostra association’s accounts, as he in fact did two days later. ..." B. The proceedings in the Criminal Cassation Division of the Vaud Cantonal Court On 15 October 1982 an appeal that Mr Weber brought against this decision was unanimously dismissed by the Criminal Cassation Division sitting in private (under Article 431 §§ 2 and 3 of the Vaud Code of Criminal Procedure), on the following grounds: "... In the instant case the disclosure that criminal complaints had been lodged - on 2 April 1980 against [R.] and on 1 March 1982 against the investigating judge - is not information about an investigation except in so far as it implies - and discloses - that an investigation has been commenced ..., but it may indeed amount to an offence (defamation, calumny, on the part of the complainant). Article 185 of the Code of Criminal Procedure (CCP) is therefore not applicable to the disclosure that the first complaint had been lodged, because this was punishable as defamation, or to the disclosure that the second complaint had been lodged, because no investigation was commenced. The decision is therefore well-founded on that point. The disclosure of the challenge is not information about an investigation. The challenge is not the purpose of the investigation, and the disclosure that such a challenge has been made says nothing about the purpose of the investigation, its content or its results. It remains true, on the other hand, that the existence of such an investigation is disclosed; but such a disclosure is not punishable under Article 185 CCP, since it was punishable as defamation. The disclosure of the orders for production and sequestration of the accounts in the file does amount to information about an investigation. It remains to be considered whether one can talk of disclosure, given that the matters had already been made public at an earlier press conference. ... Article 185 CCP, which is designed also - and even primarily - to protect the public interest in ensuring that investigations take place in the best possible conditions, prohibits parties from communicating information from the file; it is therefore sufficient that the matters should be confidential in nature, without necessarily still being confidential; communication of matters of a confidential nature to someone who knows them already as a result of an earlier indiscretion is therefore a punishable offence. Furthermore, the applicant cannot rely on common knowledge when that knowledge is due to an earlier disclosure that he himself has made. The appellant was therefore rightly convicted. ..." Finally, the Criminal Cassation Division set aside of its own motion the entry of the fine in the cantonal register. It noted that under Vaud law and notwithstanding that they were convertible into days of imprisonment (arrêts), the fines for "procedural offences", such as breaching the confidentiality of a judicial investigation, were disciplinary in nature, since they were designed to ensure that the investigation proceeded normally. On this point cantonal law differed from federal law. The proceedings in the Federal Court Mr Weber lodged a public-law appeal with the Federal Court. He relied on Articles 10 and 6 (art. 10, art. 6) of the Convention. In his view, Article 6 (art. 6) applied because of the criminal nature of the fine, which under Article 18a of an Order of 23 January 1982 was convertible into a custodial sentence. On 16 November 1983 the Federal Court dismissed the appeal. It noted in particular: "... The applicant ... maintained that Article 185 of the Vaud Code of Criminal Procedure (Vaud CCP) violates in the abstract, and in the alternative in the specific case, freedom of expression as secured in federal constitutional law and in Article 10 (art. 10) of the European Convention on Human Rights (ECHR). In so doing, he overlooked that it may be legitimate in the public interest to impose certain restrictions on the exercise of that fundamental right ... Article 10 § 2 (art. 10-2) in fine ECHR, moreover, provides expressly that such restrictions are permissible where they are necessary in a democratic society, in particular for maintaining the authority and impartiality of the judiciary. The rule enacted in Article 185 Vaud CCP clearly conforms to these principles. A weighing of the competing interests at stake leads to the same conclusions. While it may indeed be readily appreciated that the applicant had grounds for rebelling against the sometimes unorthodox course taken by the proceedings against him, it must not be forgotten that the usual remedies were open to him; and, indeed, on a number of occasions he successfully availed himself of them. His interest in expressing his views on this matter in public and the public’s interest in being informed by this means cannot outweigh the interest in ensuring that the judicial system can function as smoothly and impartially as possible. The prohibition against communicating information about an investigation until its completion and the penalties attaching to the offence are undoubtedly consistent with the proportionality principle. Consideration of whether the impugned interference was founded on sufficient reasons which rendered it necessary in a democratic society, having regard to all the public-interest aspects of the case (European Court of Human Rights, Sunday Times case, Series A no. 30, paragraphs 65-67) leads inevitably to the conclusion - particularly if the interests at stake in the Sunday Times case previously cited and in the applicant’s case are compared - that there was no violation of freedom of expression. ... In the instant case the appellant was liable to a fine not exceeding 500 francs (Article 185 § 1 Vaud CCP) and was fined 300 francs. Under Vaud law, such a penalty typically comes within the sphere of rules of conduct to be observed during proceedings. That is not decisive, however, according to the European institutions. Such rules are generally directed primarily at barristers, and in that instance their disciplinary nature is not in doubt; the parties to criminal proceedings, however, may also be subject to certain disciplinary rules. Admittedly, it has to be recognised that the measure taken against the appellant could have been based on a combination of Article 184 Vaud CCP, which lays down that judicial investigations shall be confidential, and Article 293 of the Criminal Code (CC), which provides that anyone who makes public any proceedings in a judicial investigation or deliberations by an authority which are secret by law shall be punishable with imprisonment or a fine. In that event the application of the Criminal Code would have justified an application of Article 6 § 1 (art. 6-1) ECHR. This was not the case, however, and it was on the basis of a cantonal rule of procedure that the appellant suffered a penalty whose disciplinary or criminal nature can be determined only by assessing the degree of its severity. The appellant showed, aptly enough, that such a fine was convertible into ten days’ imprisonment under Article 12 of the Vaud Order on the recovery of fines and their conversion into imprisonment. That procedure indeed leaves the authorities only a very limited discretion and at all events does not enable them to comply retrospectively with the requirements of Article 6 (art. 6) ECHR. The appellant overlooks, however, that Article 49 § 3, second sub-paragraph, of the Swiss Criminal Code (SCC) enables the judge to rule out conversion where the person convicted has proved that, through no fault of his own, he is unable to pay the fine. In view of the foregoing, the possibility of a custodial sentence could not make the penalty imposed in the instant case a criminal one. Ultimately, while the fine imposed in the instant case was not a negligible one, it nonetheless came into the category of penalties which by their nature, duration or manner of execution are deemed not to be appreciably detrimental. The possibility of conversion into a custodial sentence makes no difference, since conversion is possible only in the event of the appellant’s refusing to pay the fine out of sheer unwillingness. The safeguards provided for in Article 6 § 1 (art. 6-1) ECHR were therefore not applicable in the instant case." The applicant paid the fine in January 1985. THE

10

It specialises in electronics and in particular sells 90 cm-diameter dish aerials for home use. Its application relates to the reception in <COUNTRY> of uncoded television programmes made and broadcast in the Soviet Union. They are transmitted to the Soviet satellite G-Horizont (also called Stationar-4), which sends them back to receiving earth stations on Soviet territory, and these in turn distribute them to users. The satellite is a telecommunications satellite and not a direct-broadcasting one: it provides a fixed point-to-point radiocommunication service (number 22 of the Radio Regulations - see paragraph 36 below) and uses the frequencies allotted to radiocommunications. It also transmits telephone conversations, telexes or telegrams and data. In 1982 the only television broadcasts by satellite that could be received in <COUNTRY> by means of a dish aerial were those from G-Horizont. A. Background to the case The first application for permission In the spring of 1982 Autronic AG applied to the Radio and Television Division of the Head Office of the national Post and Telecommunications Authority (PTT). It requested permission to give a showing at the Basle Trade Fair (Mustermesse) from 17 to 26 April 1982 of the public television programme that it received direct from G-Horizont by means of a private dish aerial, its object being to give a demonstration of the technical capabilities of the equipment in order to promote sales of it. The Division wrote to the Soviet Union’s embassy in Berne, which on 21 April conveyed the Soviet authorities’ consent for the duration of the fair. The second application for permission On 7 July 1982 Autronic AG made a similar approach in order to give demonstrations at the FERA exhibition, which was to be held in Zürich from 30 August to 6 September 1982 and covered the latest developments in radio, television and electronics. The Radio and Television Division again applied to the Soviet embassy, but did not receive a reply. On 14 and 26 July and on 6 August it informed Autronic AG that without the express consent of the Soviet authorities it could not allow reception of the G-Horizont broadcasts and that the Radio Regulations (see paragraph 36 below) required it to prevent such reception. B. The application for a declaratory ruling The proceedings before the Radio and Television Division (a) The application of 1 November 1982 As Autronic AG was anxious to give further demonstrations, it applied to the Radio and Television Division, on 1 November 1982, for a declaratory ruling (Feststellungsverfügung) that, in particular, reception for private use of uncoded television programmes from satellites such as G-Horizont should not require the consent of the broadcasting State’s authorities. The applicant company relied on several arguments: the confidentiality of a programme could not depend on the use of particular frequencies; numbers 1992-1994 of the Radio Regulations gave no indication of which kind of broadcast was to be kept confidential; reception of radio and television programmes intended for and accessible to the general public could be made subject only to the award of a licence under Swiss law, which was available to everybody; and, lastly, the reception in question did not infringe Swiss legislation on intellectual property, because while programmes taken individually could have the status of "works", the same was not true of a whole schedule. (b) The decision of 13 January 1983 On 13 January 1983 the Radio and Television Division rejected the applicant company’s application, stating that it could not grant a receiving licence without the consent of the broadcasting State’s authorities. The Division noted that only duly approved earth stations were entitled to receive signals from telecommunications satellites. In this connection it referred to number 960 of the Radio Regulations, under which each national authority could assign certain frequencies to point-to-point radiocommunications provided that the broadcasts were not intended for direct reception by the general public. It also stressed the difference between broadcasting satellites and telecommunications satellites. The former transmitted radio and television programmes to an undefined number of receiving stations within a given area, on frequencies expressly reserved for direct reception, while the latter were covered by the secrecy of broadcasts which all member States were obliged to ensure under Article 22 of the International Telecommunication Convention and numbers 1992-1994 of the Radio Regulations (see paragraphs 34 and 36 below). It added, lastly (translation from German): "As to whether a broadcast is intended for direct reception by the general public, the decisive factor is accordingly not the content of the radiocommunication transmitted (a television programme, for example) but the mode of its transmission, in other words its classification as a telecommunication. It follows that radio or television programmes transmitted via a telecommunications satellite cannot be received in a country unless the telecommunications authority of the broadcasting State ... has given its permission to the telecommunications authority of the receiving State. This will ensure compliance with the provisions on the secrecy of telecommunications. There is no apparent reason why telecommunications authorities should not be able to keep certain radiocommunications secret since they are under an obligation to ensure that the provisions of the International Telecommunication Convention and of the Radio Regulations are complied with." The proceedings before the Head Office of the PTT On 14 February 1983 Autronic AG lodged an appeal (Beschwerde) against the Radio and Television Division’s decision but this was rejected by the Head Office of the PTT on 26 July. The Head Office began by holding that it had jurisdiction and that the company had an interest, worthy of protection, in having the disputed decision set aside under section 48 of the Federal Administrative Procedure Act. It went on to set out its reasons for dismissing the appeal. Protection of the material information could not depend on whether the broadcasts were intended for the general public, since as a rule it was not known, at the time of transmission by telecommunications satellites, which broadcasts were intended for general use. Furthermore, Article 10 (art. 10) of the European Convention on Human Rights secured only the right to receive information from generally accessible sources, which telecommunications satellites were not. Lastly, it was irrelevant that the broadcasts were ultimately intended for general use, as the obligation to keep the transmitted data secret subsisted at the time of broadcasting. The proceedings in the Federal Court On 13 September 1983 Autronic AG lodged an administrative-law appeal with the Federal Court against the decision of the Head Office of the PTT. It applied to have that decision set aside and sought a judgment which would clarify the legal situation for the future; it asked the court in particular to rule that reception for private use of uncoded broadcasts emanating from telecommunications satellites and intended for the general public should not be subject to the broadcasting State’s consent. (a) Consideration of the appeal In reply to a request for information made by the Radio and Television Division of the Head Office of the Swiss PTT, the Head Office of the Soviet Union’s Gostelradio said the following in a telex of 7 February 1984: "With reference to your letter of 9 January 1984, we should like to inform you that the programmes transmitted by ‘Stationar 4’ [G-Horizont] are not satellite broadcasts intended for foreign countries. The programmes are intended for Soviet television viewers and are our internal affair. On the other hand, we have no technical means of preventing them from reaching other countries, particularly <COUNTRY>. As regards the international use of the signal, only discussion and settlement of the problem at world level will provide a solution." On 9 July 1984 the Federal Court put a number of questions to the parties about the factual and legal position. The Head Office of the PTT replied on 22 August and the applicant company on 31 August. On 10 June 1985 the rapporteur informed Autronic AG that the Federal Court had not yet been able to consider the appeal and that the company had until 16 August 1985 to submit any further observations. On 26 June 1985 the Radio and Television Division sent the <COUNTRY> telecommunications authorities the following telex: "... In connection with the judgment of a request, we would like to know on which conditions reception of TV programmes via telecommunications satellites is permitted in the <COUNTRY>. Please let us also know if the Soviet communications satellite G-Horizont Stationar is received in your country (by cable operators). ..." The <COUNTRY> authorities replied on 1 July 1985 as follows: "... The conditions for reception of TV programmes by cable operators in the <COUNTRY> seem to be quite similar to those in your country. The <COUNTRY> PTT issues licences to cable operators, separate for each particular TV program. With such a licence the operator can install his own TVRO antenna, although it is advisable for him to consult with PTT for frequency co-ordination purposes in order to avoid interference from terrestrial microwaves. ... A few years ago some reception of the G-Horizont satellite did indeed take place. This was considered illegal because of the absence of agreements with the USSR program provider and satellite operator, and the cable operators were so informed. ..." In response to a similar request for information, the Finnish telecommunications authorities stated the following on 8 July 1985: "... We have permission from the Telecommunications Ministry of USSR to receive as an experiment the [G-Horizont] signal up to 1985. Authorization for distribution has been given in seven cases so far." (b) The judgment of 10 July 1986 The Federal Court gave judgment on 10 July 1986 and served the text on Autronic AG on 11 November. The court held that the appellant company was seeking a review in the abstract of the legal position, whereas in reality it could only complain of the ban on receiving the disputed broadcasts during the FERA exhibition. There was, however, no point in ruling on the admissibility of the appeal, since at all events the company had failed to show that it had an interest worthy of protection. Apart from G-Horizont, there was no other satellite over Europe at the time whose broadcasts were receivable by means of a domestic dish aerial. Autronic AG picked up the signals from the Soviet satellite because there was no alternative source. As long as this situation continued, there would be practically no market for such equipment and only "eccentrics" (Sonderlinge) would be inclined to buy it. Although two other satellites - one German and one French - were to be launched, it remained unclear how they would be used and it was impossible to assess either the interest that direct reception of their broadcasts would arouse or the number of dish aerials that would come into use. The Federal Court concluded that as it had failed to adduce evidence of any direct economic interest, the applicant company had no interest worthy of protection. It therefore refused to determine the merits of the case. Subsequent developments At the present time, there are still only a handful of direct-broadcasting satellites, whereas there are more than 150 telecommunications satellites such as G-Horizont, covering all or part of western Europe and broadcasting all kinds of uncoded programmes intended for the general public. THE LEGAL RULES IN ISSUE A. Swiss legislation Article 36 § 4 of the Federal Constitution guarantees "inviolability of the secrecy of letters and telegrams". The Federal Act of 1922 The relevant provisions of the Federal Act of 14 October 1922 regulating telegraph and telephone communications are as follows: Section 1 "The Post and Telecommunications Authority shall have the exclusive right to set up and operate transmitting and receiving equipment or equipment of any kind for the electric or radio transmission of signals, images or sounds." Section 3 "The competent authority shall be able to issue licences for setting up and operating equipment for the electric and radio transmission of signals, images and sounds." Section 46 § 2 "The provisions required for the implementation of this Act shall be incorporated into the Ordinance on telegraphs and telephones to be enacted by the Federal Council and in the detailed regulations ..." The 1973 Ordinance On 10 December 1973 the Federal Council enacted Ordinance no. 1 relating to the 1922 Act; among other things the Council laid down the scope of television licences: Article 66 "Licence I for television-receiving equipment shall entitle the holder to operate equipment for the private reception, by means of radio waves or by electric wire, of Swiss and foreign public television broadcasts. Reception of television broadcasts on premises which are not accessible to the public shall be deemed to be private. The licence-holder may himself install his equipment for receiving broadcasts by means of radio waves. A special licence must be held in order to exercise rights vested in the State other than those mentioned in paragraphs 1 and 3, in particular in order to demonstrate how receiving equipment works, to install receiving equipment in the homes of third parties and to arrange for public reception of broadcasts." The revised text of Ordinance no. 1, which was enacted on 17 August 1983, came into force on 1 January 1984. Although it does not apply in the instant case, several of its provisions are worth quoting: Article 19 § 1 "Licences may be refused where there is good reason to suppose that the telecommunications equipment will be used for a purpose that is (a) unlawful; (b) contrary to public morals or public policy; or (c) prejudicial to the higher interests of the country, of the Post and Telecommunications Authority or of broadcasting." Article 57 § 1 "Radio- and television-receiving licences shall authorise their holders to receive Swiss and foreign radio broadcasts privately or publicly." Article 78 § 1 "A community-antenna licence shall entitle the holder to: (a) Operate the local distribution network defined in the licence and rebroadcast by this means radio and television programmes from transmitters which comply with the provisions of the International Telecommunication Convention of 25 October 1973 and the International Radio Regulations and with those of the international conventions and agreements concluded within the International Telecommunication Union; ... (f) Transmit programmes and special broadcasting services which, on the authorisation of the Post and Telecommunications Authority, which itself requires the Department’s consent, are received from telecommunications satellites; ..." Article 79 § 2 "The authorisation referred to in Article 78 § 1 (f) shall be granted where the appropriate telecommunications authority has given its consent and none of the grounds for refusal provided for in Article 19 exist." The Federal Decree of 1987 On 20 December 1985 the Federal Council submitted to Parliament, by means of a communication, a draft decree of general application on satellite broadcasting. The decree, enacted on 18 December 1987 and effective from 1 May 1988, contained an Article 28 concerning foreign programmes, which was worded as follows: "A licence from the [appropriate federal] department shall be required in order to retransmit programmes broadcast by satellite under a foreign licence. Such a licence shall be granted where this is not contrary to the country’s higher interests and where (a) the PTT finds that the requirements of Swiss and international telecommunications law are satisfied; ... The department may refuse to grant a licence where a State whose licensing system allows a programme does not accept the retransmission on its territory of programmes broadcast under a Swiss licence." B. The international rules The International Telecommunication Convention The International Telecommunication Convention, which was concluded in 1947 within the International Telecommunication Union and has been revised several times, came into force on 1 January 1975 and has been ratified by all the Council of Europe’s member States. In <COUNTRY> it has been published in full in the Official Collection of Federal Statutes (1976, p. 994, and 1985, p. 1093) and in the Compendium of Federal Law (784.16). Article 22, entitled "Secrecy of telecommunications", provides: "Members agree to take all possible measures, compatible with the system of telecommunication used, with a view to ensuring the secrecy of international correspondence. Nevertheless, they reserve the right to communicate such correspondence to the competent authorities in order to ensure the application of their internal laws or the execution of international conventions to which they are parties." Under Article 44 member States are bound to abide by the Convention and the Administrative Regulations in all telecommunications offices and stations established or operated by them which engage in international services or which are capable of causing harmful interference with radio services of other countries. The Convention is complemented by three sets of detailed administrative rules (as indicated in Article 83): the Radio Regulations, the Telegraph Regulations and the Telephone Regulations. Only the Radio Regulations are relevant in the instant case. The Radio Regulations The Radio Regulations date from 21 December 1959 and were likewise amended in 1982 and also on other occasions. They run to over a thousand pages and - except for numbers 422 and 725 - have not been published in the Official Collection of Federal Statutes. The latter contains the following reference to them: "The administrative regulations relating to the International Telecommunication Convention of 25 October 1973 are not being published in the Official Collection of Federal Statutes. They may be consulted at the Head Office of the PTT, Library and Documentation, Viktoriastrasse 21, 3030 Berne, or may be obtained from the ITU, International Telecommunication Union, Place des Nations, 1202 Geneva." The following provisions are the ones relevant in the present case: Number 22 "Fixed-Satellite Service: A radiocommunication service between earth stations at specified fixed points when one or more satellites are used; in some cases this service includes satellite-to-satellite links, which may also be effected in the inter-satellite service; the fixed-satellite service may also include feeder links for other space radiocommunication services." Number 37 "Broadcasting-Satellite Service: A radiocommunication service in which signals transmitted or retransmitted by space stations are intended for direct reception by the general public. In the broadcasting-satellite service, the term ‘direct reception’ shall encompass both individual reception and community reception." Number 960 "Any administration may assign a frequency in a band allocated to the fixed service or allocated to the fixed-satellite service to a station authorized to transmit, unilaterally, from one specified fixed point to one or more specified fixed points provided that such transmissions are not intended to be received directly by the general public." Numbers 1992-1994 "In the application of the appropriate provisions of the Convention, administrations bind themselves to take the necessary measures to prohibit and prevent: (a) the unauthorized interception of radiocommunications not intended for the general use of the public; (b) the divulgence of the contents, simple disclosure of the existence, publication or any use whatever, without authorization, of information of any nature whatever obtained by the interception of the radiocommunications mentioned [in sub-paragraph (a)]" The International Telecommunication Union’s reply to the Swiss Government’s questions On 29 September 1983 the Permanent Mission of <COUNTRY> to the international organisations in Geneva put two questions to the International Telecommunication Union, which replied on 31 October, saying inter alia: "With regard to this aspect of [the] practical pursuance [of the principle of secrecy of telecommunications], it is ... important, indeed essential, to note also that no precise measures concerning practical ways of effectively ensuring such ‘secrecy of telecommunications’ are prescribed by either the Convention or the RR [Radio Regulations], but that the RR leave the choice of these practical measures to the administrations of the Union’s Members. That is how it is necessary to understand and interpret numbers 1992 and 1993 of the RR, which stipulate that it is administrations that bind themselves to take the necessary measures to prohibit and prevent: (a) the unauthorised interception of radiocommunications not intended for the general use of the public (... that also applies, of course, to number 1994 of the RR). This means that it is for the administration of each of the Union’s Members itself to take whatever measures it deems necessary to prohibit and prevent on its territory the unauthorised interception of the radiocommunications referred to in number 1993 of the RR. This, incidentally, is in accordance with the first principle laid down in the preamble to the Convention, which is worded as follows: "While fully recognising the sovereign right of each country to regulate its telecommunication ... ". In the case under consideration here ..., it is for the Swiss Administration to put into effect <COUNTRY>’s undertaking to ensure the secrecy of telecommunications by whatever measures it itself considers necessary for the purpose. Such measures may, of course, be different from those regarded as necessary by the administrations of other Members of the Union which have given the same undertaking. With regard, lastly, to the authorisation required for the interception of radiocommunications not intended for the general use of the public ..., it should be inferred from the terms of numbers 1992 and 1993 of the RR that an administration which has committed itself to taking the necessary measures to prohibit and prevent such unauthorised interception in order to ensure the secrecy of telecommunications is also to be regarded as the one empowered to give, where appropriate, the authorisation for such interception on its territory and hence to lay down the terms and conditions on which it grants such authorisation. In the case under consideration here ... it is therefore the Swiss Administration that, with a view to ensuring the secrecy of telecommunications, should decide whether or not such authorisation is to be granted and lay down the terms and conditions it itself considers necessary for the purposes of that decision. By way of a conclusion and a final legal consequence, it should be borne in mind that what was stated in the preceding paragraph also applies, mutatis mutandis, in respect of the authorisation itself." Recommendation T/T2 At a session held in Vienna from 14 to 25 June 1982 the European Conference of Postal and Telecommunications Administrations adopted Recommendation T/T2, which reads: "The European Conference of Postal and Telecommunications Administrations, considering (a) ... (b) that fixed-satellite service signals are intended for reception only by known correspondents duly authorised under the Radio Regulations appended to the International Telecommunication Convention; (c) ... (d) that there is a risk that the technical development of small earth stations may facilitate the unauthorised reception and use of fixed-satellite service signals, particularly television signals, thus turning the fixed-satellite service into a broadcasting-satellite service, which would be unlawful under the International Telecommunication Convention and the Radio Regulations; (e) ... (f) ... (g) that all ITU Members are under an obligation to apply and enforce the provisions of the International Telecommunication Convention and the Radio Regulations appended to the Convention; ... Recommends ... that reception of these signals should be authorised only with the consent of the Administration of the country in which the station transmitting to the satellite is situated and of that of the country in which the prospective receiving earth station is located; ..." (translation by the registry) The European Convention on Transfrontier Television The European Convention on Transfrontier Television, which was drawn up within the Council of Europe and signed on 5 May 1989 by nine States, including <COUNTRY>, is not yet in force. Article 4, entitled "Freedom of reception and of retransmission", provides: "The Parties shall ensure freedom of expression and information in accordance with Article 10 (art. 10) of the Convention for the Protection of Human Rights and Fundamental Freedoms and they shall guarantee freedom of reception and shall not restrict the retransmission on their territories of programme services which comply with the terms of this Convention." The Swiss Government made a declaration to the effect that the Confederation would apply the Convention provisionally, in accordance with Article 29 §

Netherlands, Switzerland

The applicant, a German national born in 1914, is resident in Hamburg. On 6 August 1950, he drove his car into the parked and unlighted trailer of a lorry belonging to a firm. His mother, a passenger in the car, died from her injuries and Mr. Axen himself was severely injured. The driver of the lorry and two other persons, namely a garage owner and a filling-station assistant, who had undertaken to repair the trailer and tow it off the road, were convicted by the Lüneburg Regional Court (Landgericht) on 31 January 1951 of negligently causing death and personal injuries. Mr. Axen brought actions for damages against the driver and the owner of the lorry before the Hamburg Regional Court and against the garage owner and the filling-station assistant before the Lüneburg Regional Court. The first action concluded with two judgments of the Hanseatic Court of Appeal (Hanseatisches Oberlandesgericht) in Hamburg, one of 23 January 1968 awarding the applicant about DM 41,000 for loss of earnings and the other of 6 August 1973 awarding him DM 8,000 for non-pecuniary damage. In the proceedings against the garage owner and the filling-station assistant, the Celle Court of Appeal (Oberlandesgericht) awarded Mr. Axen on 16 January 1969 compensation of DM 40,000 for non-pecuniary damage, subject to deduction of the DM 8,000 awarded by the Hamburg Court of Appeal. Mr. Axen appealed on points of law (Revision), but the Federal Court of Justice (Bundesgerichtshof) dismissed the appeal on 29 September 1970. As regards the claims for loss of earnings, the Celle Court of Appeal awarded the applicant on 27 February 1975 a lump-sum of about DM 39,000 together with an annuity, subject to deduction of the compensation already granted in Hamburg. The Court of Appeal was ruling on an appeal by the applicant against a judgment of 12 May 1972 of the Lüneburg Regional Court. The hearings before these courts and the pronouncement of their decisions took place in public. Mr. Axen filed with the Federal Court of Justice an appeal on points of law (Revision) against the Celle Court of Appeal’s judgment. The appeal related to the quantum of his loss of earnings. In his memorial of 18 May 1976, setting out the grounds of appeal (Revisionsbegründung), he complained of the Court of Appeal’s failure to grant his request that an expert be heard on the subject of the reports made by other experts concerning his loss of earning capacity; according to him, the Court of Appeal should at least have called for a further expert opinion (Obergutachten). He also challenged the method used by the Court of Appeal for assessing the respective share of responsibility of the persons involved in the accident. A last ground of appeal concerned the question whether the Court of Appeal was entitled to take into account the social security benefits received by the applicant. On 26 October, the 6th Chamber of the Federal Court refused to grant Mr. Axen legal aid, on the ground that the appeal offered no prospects of success. On 8 December 1976, the applicant’s lawyer asked the 6th Chamber to hold a hearing in the case. On 15 December, its President informed him that the Chamber was going to deliberate on the possibility of examining the appeal without oral argument. The President directed that the lawyer should have until 20 January 1977 to file any observations he might wish to make. The latter acknowledged receipt of this communication on 16 December 1976, but submitted no comments. However, on 7 January 1977 his client sent to him a letter protesting against the proposed procedure. A copy was sent to the Federal Court, but it could not be included with the papers in the case since it was not a document prepared by the applicant’s lawyer, only the latter having the right of audience before that Court. On 8 March 1977, the 6th Chamber of the Federal Court of Justice, without holding a hearing, unanimously rejected the appeal. Its judgment (Beschluss) was neither pronounced in open court nor published but was served on the applicant on 15 March 1977 pursuant to Article 329 of the Code of Civil Procedure (Zivilprozessordnung), which provides (translation): "decisions adopted by courts after a hearing must be pronounced" and "decisions which are not pronounced shall be communicated to the parties in such manner as may be found appropriate". The judgment read as follows (translation): "Having informed the parties and sought their views (gehört), the 6 th Chamber of the Federal Court, at its session of 8 March 1977 ..., considered unanimously that it was not necessary to hold a hearing and decided ...: the appeal ... is dismissed. The appellant is to bear the costs of the proceedings ..." The decision not to hold a hearing was based on section 1 of the Federal Court of Justice (Reduction of Work-Load in Civil Cases) Act of 15 August 1969 (Gesetz zur Entlastung des Bundesgerichtshofs in Zivilsachen). Originally this Act was due to expire on 15 September 1972 but its validity was extended until 15 September 1975 by an Act of 7 August 1972. The Act, as so extended, applied to proceedings in appeals on points of law concerning decisions delivered or notified between 15 September 1969 and 15 September 1975; it therefore covered the examination of the applicant’s appeal, which was directed against a judgment of 27 February 1975 (sections 4 para. 2 and 6 of the 1969 Act; sections 1 and 3 of the 1972 Act; sections 3 para. 3 and 5 of the Appeals on Points of Law in Civil Cases (Modification of Procedure) Act of 8 July 1975 - Gesetz zur Äenderung des Rechts der Revision in Zivilsachen). Section 1 para. 2 of the Act of 15 August 1969 provided as follows (translation): "A court determining an appeal on points of law (Revisionsgericht) may take its decision without holding a hearing if it unanimously considers that the appeal is ill-founded and that oral argument is not necessary. The parties shall be informed and asked for their views (gehört) beforehand. The judgment (Beschluss) shall record that the conditions for adopting this procedure are satisfied; no further reasons need be given." On 4 April 1977, the applicant appealed to the Federal Constitutional Court against the Celle Court of Appeal’s judgment of 27 February 1975 and the Federal Court of Justice’s judgment of 8 March 1977; in a supplementary memorial of 16 April he complained of the above-mentioned legislation itself, relying, inter alia, on Article 6 (art. 6) of the Convention. In a ruling given on 14 July 1977 by a panel of three judges, the Federal Constitutional Court decided not to hear the appeal. It considered that, in so far as the appeal concerned the legislation, it was inadmissible as being out of time and that, as regards the judicial decisions complained of, it did not offer sufficient prospects of success since there had been no violation of a right specifically guaranteed by the Basic Law and notably Article 3 thereof.

2, P1-1, 8

A. The facts At the material time all the applicants lived at various addresses in Urus-Martan. The first applicant lived with her family in a block of flats at 224 Kalanchakskaya Street. 10 . According to the second applicant, she had owned a private house at 15 Dostoyevskiy Street. In support of her submission, the second applicant adduced a certificate from the Urus-Martan Administration ( aдминистрация г. Урус-Мартан ), dated 2 December 2004, stating that she had lived on real estate measuring 428 square metres at 15 Dostoyevskiy Street. The certificate indicated that the property had been damaged as a result of the military actions in the Chechen Republic in 1999. It did not specify whether the second applicant had any property rights in respect of that estate. 11 . According to the third applicant, she had lived with her husband and children in a private house at 25 Mayakovskiy Street. She adduced an extract from a housing inventory ( похозяйственная книга ) issued by the Urus-Martan Administration on 26 March 2009, stating that she had real estate at 25 Mayakovskiy Street and that the property, measuring 40 square meters, had been built or acquired in 1995. According to the fourth applicant, he had lived with his family in a private house at 24 Mayakovskiy Street. He submitted a certificate from the Urus-Martan Administration, dated 3 July 2002, stating that he had lived on real estate measuring 365 square metres at 24 Mayakovskiy Street. The certificate indicated that the property had been damaged as a result of the military actions in the Chechen Republic in 1999. It did not specify whether the fourth applicant had any property rights in respect of that estate. The fourth applicant also adduced an extract from a housing inventory issued by the Urus-Martan Administration on 26 March 2009, stating that he had real estate at 27 Mayakovskiy Street and that the property, measuring 235 square meters, had been built or acquired in 1993. According to the fifth applicant, he had lived with his family in a private house at 19 Dostoyevskiy Street. He submitted a certificate issued by the Urus-Martan Administration on an unspecified date in July 2002, stating that he had lived on real estate measuring 348 square metres at 19 Dostoyevskiy Street. The certificate indicated that the property had been damaged as a result of the military actions in the Chechen Republic in 1999. It did not specify whether the fifth applicant had any property rights in respect of that estate. According to the sixth applicant, he had lived with his family in a private house at 32 Pervomayskaya Street. He submitted a certificate from the Urus-Martan Administration, dated 3 July 2002, stating that he had lived on real estate measuring 310 square metres at 32 Pervomayskaya Street. The certificate indicated that the property had been damaged as a result of the military actions in the Chechen Republic in 1999. It did not specify whether the sixth applicant had any property rights in respect of that estate. The sixth applicant also adduced an extract from a housing inventory issued by the Urus-Martan Administration on 27 March 2009, stating that he had real estate at 46 Pervomayskaya Street and that the property, measuring 300 square meters, had been built or acquired in 1978. 15 . The seventh to thirteenth applicants are relatives. The seventh applicant is a brother of Mr Vakha Tselstayev and the husband of the eighth applicant. The ninth applicant is Mr Vakha Tseltsayev’s widow, and the tenth and twelfth applicants are their children. The eleventh and thirteenth applicants are Mr Vakha Tseltsayev’s children from a previous marriage. According to them, they all lived at 24 Dostoyevskiy Street. The seventh applicant submitted a certificate from the Urus-Martan Administration, dated 3 July 2002, stating that property measuring 224 square metres at 24 Dostoyevskiy Street had been damaged as a result of the military actions in the Chechen Republic in 1999. The certificate did not specify whether the seventh applicant had any property rights in respect of that real estate. The seventh applicant also adduced an extract from a housing inventory issued by the Urus-Martan Administration on 26 March 2009, stating that he had real estate at 73 Pervomayskaya Street and that this property, measuring 32 square meters, had been built or acquired in 2001. 16 . The fourteenth to nineteenth applicants are relatives. The fourteenth and fifteenth applicants are spouses, and the parents of Mr Yakub Israilov and of the sixteenth and seventeenth applicants. The eighteenth applicant is the fourteenth applicant’s nephew, and the nineteenth applicant is the fourteenth applicant’s brother. According to them, they all lived in a private house at 23 Mayakovskiy Street. The fourteenth applicant submitted a certificate from the Urus-Martan Administration, dated 3 July 2002, stating that property measuring 428 square metres at 23 Mayakovskiy Street, had been damaged as a result of the military actions in the Chechen Republic in 1999. The certificate did not specify whether the fourteenth applicant had any property rights in respect of that real estate. The fourteenth applicant also adduced an extract from a housing inventory issued by the Urus-Martan Administration on 27 March 2009, which stated that he had real estate at 23 Mayakovskiy Street and that the property, measuring 60 square meters, had been built or acquired in 1985. Attacks of 2 and 19 October 1999 (a) The applicants’ account In early October 1999 the Russian Government commenced a counter-terrorism operation in the Chechen Republic. On 2 October 1999 the federal military air forces attacked the town of Urus-Martan. One of the bombs hit the block of flats at 224 Kalanchakskaya Street, resulting in its complete destruction and human casualties. In particular, eight residents of the block of flats, including the first applicant’s husband, Mr Adlan Kerimov, and her brother, Mr Lechi Albigov, were killed, and seven residents, including the first applicant and her three minor children were wounded. On 8 October 1999 the first applicant and her three children were issued with a medical certificate confirming that they had sought and obtained medical assistance in connection with their multiple shrapnel wounds. On 19 October 1999 Urus-Martan again came under aerial attack by the federal forces. The bombing resulted in the deaths of six people and injuries to sixteen people, including the tenth, sixteenth and eighteenth applicants, the destruction of thirteen houses and damage to twenty-seven others. Those killed were: (a) Mr Makharbi Lorsanov, born in 1942, the third applicant’s husband; (b) Mr Minkail Lorsanov, born in 1980, the fourth applicant’s son; (c) Ms Aminat Abubakarova, born in 1931, the fifth applicant’s mother; (d) Mr Apti Abubakarov, born in 1974, the sixth applicant’s son; (e) Mr Vakha Tseltsayev, born in 1951, a relative of the seventh to thirteenth applicants (see annex II); (f) Mr Yakub Israilov, born in 1974, a relative of the fourteenth to nineteenth applicants (see annex II). The destroyed and damaged buildings included: (a) the house at 15 Dostoyevskiy Street in which the second applicant lived; (b) the house at 25 Mayakovskiy Street in which the third applicant lived; (c) the house at 24 Mayakovskiy Street in which the fourth applicant lived; (d) the house at 19 Dostoyevskiy Street in which the fifth applicant lived; (e) the house at 32 Pervomayskaya Street in which the sixth applicant lived; (f) the house at 24 Dostoyevskiy Street in which the seventh to thirteenth applicants lived; and (g) the house at 23 Mayakovskiy Street in which the fourteenth to nineteenth applicants lived. On 19 October 1999 the sixteenth and eighteenth applicants were admitted to Urus-Martan hospital in connection with shrapnel wounds sustained during the air strike. They both submitted medical certificates attesting to their injuries. On 21 October 1999 the tenth applicant sought and obtained medical assistance in connection with a shrapnel wound to his right shoulder sustained on 19 October 1999. An entry to that effect was made on the same date in the register of urgent medical assistance at Urus-Martan hospital. On 3 March 2000 a medical death certificate was issued in respect of the fourth applicant’s son. It stated that he had died on 19 October 1999 as a result of multiple shrapnel wounds. On the same date a similar certificate was issued to attest the death on 19 October 1999 of Yakub Israilov, relative of the fourteenth to nineteenth applicants, on account of multiple shrapnel wounds. On 23 March 2001 the Urus-Martan Civil Registration Office issued a death certificate in respect of the sixth applicant’s son, stating that the latter had died in Urus-Martan on 19 October 1999. In the period between 12 and 19 August 2002 the Urus-Martan Civil Registration Office issued death certificates in respect of the third applicant’s husband, the fourth applicant’s son, the fifth applicant’s mother, the seventh to thirteenth applicants’ relative and the fourteenth to nineteenth applicants’ relative. The place and date of their deaths were indicated as Urus-Martan, 19 October 1999. (b) The Government’s account 28 . According to the Government, pursuant to Presidential Decree no. 1255c of 23 September 1999, the Russian authorities launched a counter-terrorism operation in the Northern Caucasus for the disarmament and liquidation of illegal armed groups and restoration of constitutional order. The activity of the illegal armed groups was threatening public interests, State security, the territorial integrity of Russia and the lives, rights and freedoms of its citizens in the Chechen Republic and some other areas of the Northern Caucasus. 29 . The operation was carried out by the federal armed forces. In late September 1999 the Group “West” was formed under the command of General Major Sh. In the same period the United Air Forces Group was created under the command of General Lieutenant G. In early October 1999 the federal forces commenced the counter-terrorism operation in the Chechen Republic. 30 . In the Government’s submission, once the campaign in the Chechen Republic had commenced, the authorities, via the mass-media and leaflets, ordered the illegal fighters to stop their criminal activity and lay down arms and warned the local population of the possible use of aircraft and artillery in case of the organised resistance by the illegal armed groups to the federal forces. In response, the rebel fighters offered fierce armed resistance and organised fortified defence in local settlements, prohibiting the residents from leaving their houses and using them as human shields. 31 . According to the Government, in the middle of October the town of Urus-Martan was occupied by Islamic extremists – Wahhabis – amounting to over 1,500 persons. In the Government’s submission, “almost no local residents remained in Urus-Martan as a result of the violence applied to them by the Wahhabis”. The latter based their headquarters in the town and significantly fortified it. In particular, they located their command points in the central part of the town, in school no. 7 and the building of the town administration and kept captives and local residents detained for refusal to collaborate with them in the basements of those buildings. In the Government’s submission, there was a camp of captives and slaves in the town. The illegal fighters also had a number of radio relays and television re-transmitters in the town, and they actively used that equipment for detecting movements of the federal forces. On the outskirts, the rebel fighters located their bases and a centre for subversive training, dug trenches and dugouts, filled pits with oil to be able to explode them on the approach of the federal forces, and organised numerous firing posts in residential buildings. The depth of defence extended to three to four quarters from the outskirts towards the town centre. According to the intelligence data, the extremists were not prepared to surrender and planned violent military actions against the federal troops. In October 1999 the illegal armed groups led active military actions against the federal forces, using surface-to-air missile systems and large-calibre firearms against the federal aircraft. In particular, the extremists attacked the federal aircraft from the roofs of high-rise buildings in Urus-Martan with the result that a number of federal planes and helicopters were shot down and the pilots either killed or captured. Such incidents took place on 1, 3 and 4 October 1999. Also, according to the intelligence data, around 18 October 1999 a new group of approximately 300 fighters arrived at Urus-Martan as reinforcements. 33 . In those circumstances, on 18 October 1999 General Major Sh. issued order no. 04, which in paragraph 2 prescribed that the federal aircraft resources be assigned for tactical support to the Group “West” and that the illegal fighters’ bases, ammunition depots and other important targets outside the reach of the federal artillery fire be destroyed by pinpoint aerial strikes. 34 . On 19 October 1999, pursuant to that order, two military SU-24 M planes belonging to military unit no. 11731, each laden with eighteen high-explosive fragmentation aerial bombs of calibre 250-270 kg, at 30 p.and 31 p.carried out strikes on concentrations of illegal fighters one kilometre to the east of Urus-Martan. This decision was noted down on the tactical map of the United Air Forces Group of the United Group Alignment. 35 . At the same time, the planes also carried out bomb strikes on the extremists’ bases in Urus-Martan, including those situated in school no. 7 and the building of the town administration. The planes also bombed rectangle no. 75443 on the eastern outskirts of Urus-Martan where, according to the Government, residential buildings prepared for long-term defence were situated. The residential quarter comprising Dostoyevskiy, Mayakovskiy and Pervomayskaya Streets fell within rectangle no. 75443 and the houses in which the second to nineteenth applicants lived were among the buildings hit by the federal bombers. Official investigation into the attack of 2 October 1999 (a) Information received by the first applicant’s representative 36 . It does not appear that the first applicant applied personally to law-enforcement agencies in connection with the attack of 2 October 1999. It can be ascertained from the documents submitted that Mr A. Khamzayev, a former resident of Urus-Martan and a lawyer practising in Moscow, complained to various public bodies about this incident on behalf of the first applicant and other victims of the attack of 2 October 1999. He described the circumstances of the strike, listed those killed and wounded and sought to have this incident duly investigated. On 14 April 2001 the Prosecutor’s Office of the Urus-Martan District ( прокуратура Урус-Мартановского района – “the district prosecutor’s office”) forwarded Mr Khamzayev’s complaint to the Temporary Office of the Interior of the Urus-Martan District ( временный отдел внутренних дел Урус-Мартановского района – “the Urus-Martan VOVD”) for examination. On 18 and 22 June 2001 respectively the Military Prosecutor’s Office of the North Caucasus Military Circuit ( военная прокуратура Северо-Кавказского военного округа – “the circuit military prosecutor’s office”) transmitted Mr Khamzayev’s complaint about the attack of 2 October 1999 to the military prosecutor’s office of military unit no. 20102 ( военная прокуратура – войсковая часть 20102 ) for examination. The latter was requested to reply to Mr Khamzayev by 10 July 2001. On 4 July 2001 the circuit military prosecutor’s office forwarded a duplicate of Mr Khamzayev’s complaint to the military prosecutor’s office of military unit no. 20102. In a letter of 24 August 2001, similar to those of 22 June and 4 July 2001, the circuit military prosecutor’s office transmitted one more duplicate of Mr Khamzayev’s complaint about the incident of 2 October 1999 to the military prosecutor’s office of military unit no. 20102, requesting it to give a reply by 24 September 2001. In a letter of 25 July 2001 the Prosecutor’s Office of the Chechen Republic ( прокуратура Чеченской Республики – “the republican prosecutor’s office”) informed Mr Khamzayev that they had examined his complaint concerning an air strike of 2 October 1999 on a house at 224 Kalanchakskaya Street, and that on 23 April 2001 criminal proceedings had been brought under Article 167 § 2 of the Russian Criminal Code (aggravated deliberate destruction of, or damage to, property) in that connection. The letter further stated that the case file had been assigned the number 25268 and that the district prosecutor’s office was carrying out an investigation into the incident. 40 . On 25 August 2001 the Urus-Martan VOVD notified Mr Khamzayev that the district prosecutor’s office had opened two criminal cases in connection with an air strike of 2 October 1999 on Kalanchakskaya Street. In particular, on 21 July 2000 criminal case no. 24031 had been opened under Article 105 § 2 of the Russian Criminal Code (aggravated murder), and on 20 October 2000 criminal case no. 24050 had been opened under Article 167 § 2 of the Russian Criminal Code. In a letter of 19 September 2001 the military prosecutor’s office of military unit no. 20102 informed Mr Khamzayev that on 20 October 2000 the district prosecutor’s office had opened criminal case no. 24050 in connection with the air strike of 2 October 1999 on the southern outskirts of Urus-Martan, and that the investigation was currently pending. The letter also stated that there was no evidence of any involvement in the attack of servicemen from the Russian Ministry of Defence or personnel from the interior troops of the Russian Ministry of the Interior. 42 . On 11 October 2001 the district prosecutor’s office informed Mr Khamzayev that they had examined his complaints and, in the course of the investigation, would take into account his arguments concerning the actions of the federal servicemen during the attack of 2 October 1999. They also stated that progress reports on the course of the investigation could not be issued for private individuals. 43 . On 8 November 2001 the commander of military unit no. 40911 replied to Mr Khamzayev’s complaint of 30 October 2001, stating, inter alia , that the block of flats at 224 Kalanchakskaya Street had not been listed among the targets selected for a strike by the federal air forces, that the latter had not received any orders to carry out such a strike on 2 October 1999, and that there was no available information as to whether there had been transgression by foreign military aircraft into the airspace of the <COUNTRY> in October 1999. On 19 March 2004 the republican prosecutor’s office replied to Mr Khamzayev’s complaint about the district prosecutor’s office’s failure to act in respect of his requests to institute criminal proceedings in connection with the bomb strike of 2 October 1999. The letter stated, in particular, that on 29 July 2001 the Urus-Martan VOVD had instituted criminal proceedings under Article 167 § 2 of the Russian Criminal Code and that at present the investigation in that case was being conducted by the district prosecutor’s office. The letter invited Mr Khamzayev to send his queries concerning the course and results of the investigation to the district prosecutor’s office. In a letter of 25 March 2004, upon Mr Khamzayev’s request, the Urus-Martan Administration furnished him with a notarised copy of eyewitness statements describing the events of 2 October 1999 and certificates confirming the destruction of property at 222 and 224 Kalanchakskaya Street. On 5 April 2004 the first applicant was granted victims status in case no. 25268. On 22 April 2004 the republican prosecutor’s office sent Mr Khamzayev a letter similar to that of 19 March 2004. 48 . In a letter of 4 May 2004 the district prosecutor’s office informed Mr Khamzayev that, upon his complaint concerning the bomb strike of 2 October 1999, criminal proceedings in case no. 24031 had been instituted on 21 July 2000 under Articles 105 § 2 and 167 § 2 of the Russian Criminal Code, and that on 19 March 2003 this case had been transferred to the military prosecutor’s office of the United Group Alignment ( военная прокуратура Объединенной группы войск ) for further investigation. In June 2004 Mr Khamzayev died and Ms Khamzayeva, his daughter and the applicants’ representative in the proceedings before the Court, replaced him in representing the applicants, and in particular, the first applicant, before the domestic authorities. On an unspecified date she wrote a letter to the military prosecutor’s office of the United Group Alignment enquiring, inter alia , on behalf of the first applicant about the investigation into the attack of 2 October 1999. It is unclear whether any reply followed. (b) Information submitted by the Government According to the Government, the law-enforcement authorities of the Chechen Republic had been notified of the aerial attack of 2 October 1999 firstly on 23 September 2000, when a certain Mr E. filed a written complaint about the damage inflicted on his property during that incident to the district prosecutor’s office. On 20 October 2000 the district prosecutor’s office, upon Mr E.’s complaint, instituted criminal proceedings under Article 167 § 2 of the Russian Criminal Code (aggravated deliberate destruction of, or damage to property) in connection with the infliction of damage on Mr E.’s housing and property as a result of a bomb strike on 2 October 1999 by “an unidentified plane”. The case file was given the number 24050. On 20 December 2000 the district prosecutor’s office suspended the investigation in case no. 24050 for failure to establish those responsible. This decision was never challenged or quashed. It appears that on 22 April 2001 a certain Mr K., apparently the first applicant’s relative, complained to the Urus-Martan VOVD about the destruction of his property and the deaths and injuries inflicted on several people as a result of the bomb strike of 2 October 1999. Upon this complaint, on 23 April 2001 the Urus-Martan VOVD instituted criminal proceedings under Article 167 § 2 of the Russian Criminal Code. The case file was assigned the number 25268. In the Government’s submission, the preliminary investigation in case no. 25268 had been suspended and resumed on several occasions. On the latest occasion it was stayed on 1 September 2004 owing to a failure to establish those responsible. On 28 November 2008 this decision was set aside by a supervising prosecutor and the investigation in the said case was currently pending. Official investigation into the attack of 19 October 1999 It does not appear that any of the applicants personally sought an investigation into the events of 19 October 1999. It can be ascertained from the adduced documents that it was Mr Khamzayev who, on the applicants’ behalf, actively applied to various public bodies, describing in detail the consequences of the attack. (a) Replies from military and administrative authorities 56 . In the period between April 2000 and November 2001 Mr Khamzayev received a number of similar letters from the commander of the Troops of the North Caucasus Military Circuit ( командующий войсками Северо-Кавказского военного округа ), the Main Headquarters of the Russian Air Forces ( Главный штаб Военно-воздушных сил ), the acting commander-in-chief of the Air Forces ( временно исполняющий обязанности Главнокомандующего Военно-воздушными силами ) and the commander of military unit no. 40911. All of them denied any involvement of their personnel in the alleged attack of 19 October 1999 on Urus-Martan, stating that the federal aircraft had not conducted any flights in the vicinity of Urus-Martan or carried out any bomb-missile strikes in October 1999 or later, and that there was no available information as to whether there had been transgression by foreign military aircraft into the airspace of the <COUNTRY> in October 1999. According to the letters, air strikes were aimed only at targets which had been pre-selected and identified as military and were situated at a distance of at least two or three kilometres from inhabited areas, and that the accuracy of military aircraft excluded any possibility of accidental striking of civilian targets. As regards Mr Khamzayev’s complaints about unexploded bombs found by the residents, he was invited to apply to “a competent body of the Ministry of the Interior” in the vicinity of his domicile. 57 . A letter of an acting head of the Headquarters of military unit no. 40911 dated 15 February 2001 stated, in particular, that the aircraft of the Fourth Army of the Air Force and Counter Missile Defence ( Четвертая Армия Военно-воздушных сил и противоракетной обороны ) had not attacked Urus-Martan or launched an air strike on the residential quarter in question, since they had not possessed any information regarding any military objects in the said area which would warrant such a strike. The letter also stated that the information allegedly received by the first applicant from the military prosecutor’s office, to the effect that on 19 October 1999 two SU-25 military aeroplanes had launched an air strike on Urus-Martan, was inaccurate. On 18 December 2001 the Office of the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit ( Аппарат Полномочного представителя Президента РФ в Южном федеральном округе ) informed Mr Khamzayev that there had been no military actions in Urus-Martan in October 1999, that illegal armed formations had no military aircraft or bombs and missiles in their arsenal and that in October 1999 no transgression of foreign military aircraft into the airspace of the <COUNTRY> had been detected. 59 . In a letter of 14 November 2002 the commander-in-chief of the Air Forces also informed Mr Khamzayev that, according to a register of combat air missions ( журнал учетa боевых вылетов ) and tactical map ( карта ведения боевых действий ), on 19 October 1999 aircraft of the Russian Air Forces had not carried out any bomb strikes at a distance of one kilometre from the south-eastern outskirts of Urus-Martan. (b) Criminal proceedings It appears that on 7 April 2000 the military prosecutor’s office of military unit no. 20102 decided to dispense with criminal proceedings in connection with the events of 19 October 1999, stating that there was no evidence of involvement of the federal military in the imputed offence, and that the alleged casualties and damage could have been inflicted by fighters of illegal armed formations. On 21 July 2000 the republican prosecutor’s office instituted criminal proceedings in connection with the aerial attack of 19 October 1999 on Urus-Martan, the killing of residents and the destruction of property, under Articles 105 § 2 (a) and (e) (killing of two or more persons committed in a socially dangerous manner) and 167 § 2 of the Russian Criminal Code. The case file was assigned the number 24031 and sent to the district prosecutor’s office for investigation. Between 21 July 2000 and 7 March 2001 the criminal proceedings were suspended and resumed on three occasions (see paragraphs 104-106 below). On 29 April 2001 the district prosecutor’s office referred the file in case no. 24031 to the military prosecutor of military unit no. 20102 for further investigation (see paragraph 108 below). The latter sent the case file to the republican prosecutor’s office on 11 May 2001 (see paragraph 109 below). 64 . On 24 May 2001, in the context of civil proceedings for compensation instituted before the Basmannyy District Court of Moscow by Mr Khamzayev in respect of his destroyed house, the district prosecutor’s office furnished the court with a report on the results of the investigation in criminal case no. 24031. The document stated that on 19 October 1999 an unidentified aircraft had carried out a strike on Urus-Martan, with the result that six residents had died, sixteen had been wounded, thirteen private houses had been destroyed, and twenty-seven houses had been damaged. The republican prosecutor’s office had instituted criminal proceedings in this connection on 21 July 2000, in case no. 24031. The events of 19 October 1999 were confirmed by forty-eight witnesses, listed in the report, and by other witnesses, a report on the inspection of the scene of the incident and another on the forensic examination, as well as by other evidence, such as fragments of exploded aerial bombs seized from the territory of Mr Khamzayev’s household and a video-recording of the site of the incident, dated 10 November 1999. Finally, the report stated that, given that the illegal armed formations had no aircraft, the criminal case had been sent on three occasions for further investigation to the military prosecutor’s office, which had returned it on various grounds; this had protracted the investigation and made it difficult to identify the pilots involved in the attack of 19 October 1999. On 6 June 2001 the investigation was resumed and then stayed on 6 July 2001 (see paragraphs 110-111 below). 66 . By a decision of 18 March 2002 the circuit military prosecutor’s office refused Mr Khamzayev’s request to have criminal proceedings instituted against senior officers from the General Headquarters of the Russian Armed Forces and the Main Headquarters of the Russian Air Forces, who had allegedly provided him with false information concerning the attack of 19 October 1999. The decision referred to statements by a number of officers, who had claimed that Mr Khamzayev’s allegations concerning the bombing of Urus-Martan had been thoroughly investigated on several occasions and had proved to be unsubstantiated. In particular, one of the officers stated that he had personally examined the register of combat air missions and tactical map for the relevant period and ascertained that there had been no air strikes on the town of Urus-Martan on 19 October 1999. However, at 30 p.on that date high-explosive aerial bombs of calibre 250 kg had been launched against a group of fighters located one kilometre from the south-eastern outskirts of Urus-Martan. The decision concluded that since it had been established that the officers had provided Mr Khamzayev with full and true information, there were no constituent elements of a crime in their actions. 67 . On the same date the circuit military prosecutor’s office quashed the decision taken by the military prosecutor of military unit no. 20102 on 7 April 2000. The circuit military prosecutor’s office stated, in particular, that the decision of 7 April 2000 had been based on explanations by the Head of the Headquarters of the Group “West”, Colonel K., and an extract from the register of combat air missions, indicating coordinates which had been attacked by a pair of SU-25 planes on 19 October 1999 and which had been situated at a distance of twenty-seven kilometres from Urus-Martan. The decision of 18 March 2002 went on to say that an inquiry carried out in connection with Mr Khamzayev’s complaint against senior high-ranking officers from the General Headquarters of the Russian Armed Forces and the Main Headquarters of the Russian Air Forces had established that no air strikes on the town of Urus-Martan had been planned or carried out on 19 October 1999, and that the closest area attacked by a pair of federal planes on that date had been located one kilometre from Urus-Martan, in an area where members of illegal armed formations had been stationed. The decision concluded that in view of discrepancies in the information obtained, the inquiry could not be said to have been complete, and that therefore the decision of 7 April 2000 should be set aside. On 25 August 2002 the district prosecutor’s office resumed the proceedings in case no. 24031. Thereafter in the period between 25 September 2002 and 18 April 2003 the investigation was stayed and resumed eight times (see paragraphs 113, 115-122 below). On 17 November 2003 the investigation into the attack of 19 October 2003 had been terminated with reference to the absence of constituent elements of a crime in the actions of high-ranking military officers (see paragraph 125 below). It appears that Mr Khamzayev then unsuccessfully applied to prosecutors at various levels in an attempt to obtain a copy of the decision of 17 November 2003. 71 . In a letter of 15 March 2004 the military prosecutor’s office of the United Group Alignment informed Mr Khamzayev that the criminal proceedings in connection with the bomb strike of 19 October 1999 had been discontinued on 17 November 2003 and that a letter informing him of that decision had been sent to him on the same date. On 26 March 2004 the military prosecutor’s office of the United Group Alignment further wrote to Mr Khamzayev that the decision to discontinue the criminal proceedings in connection with the attack of 19 October 1999 had been lawful and well-founded, as it had been established during the investigation that the federal aircraft had bombed fortified command points, bases and ammunition depots of the illegal armed groups rather than any residential areas of Urus-Martan. 73 . On 10 May 2004 Mr Khamzayev complained to the Supreme Court of the Chechen Republic about the refusal of the military prosecutor’s office of the United Group Alignment to furnish him with a copy of the decision of 17 November 2003, which prevented him from appealing against that decision in court. It is unclear whether this complaint was examined. On 7 June 2004 the Main Military Prosecutor’s Office ( Главная военная прокуратура ) transmitted Mr Khamzayev’s complaints about the prosecutors to the military prosecutor of the United Group Alignment for examination. 75 . On 12 July 2004 the military prosecutor of the United Group Alignment informed Mr Khamzayev that the case file of the investigation opened into the attack of 19 October 1999 on Urus-Martan had been classified as secret, and that it was therefore impossible to provide him with any materials from the file. It also followed from the letter that the criminal proceedings had been discontinued, that Mr Khamzayev was entitled to institute civil proceedings, and that the case file could be submitted to a court upon the latter’s order. In two letters of 31 July 2004 the military prosecutor’s office of the United Group Alignment informed Mr Khamzayev, in reply to his complaints of 26 April and 26 May 2004, that criminal proceedings instituted in connection with the aerial attack on Urus-Martan on 19 October 1999 had been discontinued on 17 November 2003 in the absence of the constituent elements of a crime in the attack, and that the criminal case file was classified as secret. On 2 August 2004 the military prosecutor’s office of the United Group Alignment replied to Mr Khamzayev’s complaint of 26 May 2004, stating that the preliminary investigation in case no. 34/00/0008-03 had established that in October 1999 the town of Urus-Martan had been occupied by Islamic extremists, amounting to over 1,500 persons, who had based their headquarters in the town, had fortified it and had not been prepared to surrender, and that in such circumstances the federal command had taken a decision to carry out pinpoint bomb strikes against the bases of illegal fighters in Urus-Martan. 78 . In a letter of 10 August 2004 the military prosecutor’s office of the United Group Alignment confirmed, in reply to Mr Khamzayev’s complaint of 20 April 2004, that the criminal proceedings concerning the attack of 19 October 1999 on Urus-Martan had been terminated. The letter also stated that the case-file materials had been classified as secret. 79 . On an unspecified date Ms Khamzayeva, who replaced Mr Khamzayev in representing the applicants before the domestic authorities, wrote a letter to the military prosecutor of the United Group Alignment ( военный прокурор Объединенной группы войск ) inquiring, inter alia , on behalf of the second, third, fourth, fifth, sixth, ninth and fifteenth applicants about the investigation into the attack of 19 October 1999. It is unclear whether any reply followed. (c) Decisions granting victim status to the applicants 80 . At various times the district prosecutor’s office granted victim status in case no. 24031 to some of the applicants. In particular, the second applicant was declared a victim on 20 August 2002 and a civil claimant on 21 January 2003, the third applicant was declared a victim on 8 September 2000 and on 29 October 2002 she was declared a civil claimant in the criminal proceedings, the fourth applicant was declared a victim on 14 September 2000, the fifth applicant was declared a victim and a civil claimant on 7 September 2000 and 17 September 2002 respectively, the sixth applicant was declared a victim and a civil claimant on 8 September 2000 and 18 September 2002 respectively, the seventh applicant was declared a victim and a civil claimant on 16 September 2000 and 17 September 2002 respectively, the ninth applicant was declared a victim on 7 September 2000, the tenth applicant was granted the victim status on 11 September 2000, the fourteenth applicant was declared a victim and a civil claimant on 8 September 2000 and 17 September 2002 respectively, the sixteenth applicant was granted the victims status on 19 September 2000, the eighteenth applicant was declared a victim on 13 September 2000 and the nineteenth applicant was granted victim status on 14 September 2000. By a decision of 28 October 2002 the district prosecutor’s office refused Mr Khamzayev’s requests that victim status be granted to the tenth, eleventh, twelfth and thirteenth applicants, stating that under the relevant legal provisions, such status could be granted only to one of the relatives of a deceased person, and that earlier, namely on 7 September 2000, the ninth applicant had already been declared a victim in connection with the death of Mr Vakha Tseltsayev. Property 82 . None of the applicants who lived in the houses that were destroyed or damaged during the attack of 19 October 1999 brought civil proceedings for compensation. In their submission, this remedy was ineffective, as on 11 May and 4 October 2001 respectively the domestic courts at two levels of jurisdiction had dismissed as unfounded Mr Khamzayev’s claim for compensation for his private house, which was destroyed in that attack (see Khamzayev and Others Russia (dec.), no. 1503/02, 25 March 2010). B. Documents submitted by the Government In December 2006, following a communication to them of an application in the case of Khamzayev and Others (no. 1503/02) which concerned the federal aerial attack of 19 October 1999 on Urus-Martan, the Government produced a copy of the investigation file in case no. 34/00/0008-03 (initially no. 24031) concerning those events. The materials ran to approximately 1,200 pages and seemed to be a copy of the major part of the case file, if not the entire file. In May 2007, when the present application was communicated to them, the Government were invited to produce copies of the investigation files in the criminal cases opened in connection with the aerial attack of 2 October 1999 on Urus-Martan. In reply, the Government submitted documents running to 28 pages from the investigation file in case no. 24050, materials running to 31 pages from the investigation file in case no. 25268 and documents running to 528 pages in case no. 34/00/0008-03 representing part of the materials submitted in the case of Khamzayev and Others . They refused to produce the entire files, stating that it would be inappropriate to do so, given that under Article 161 of the Russian Code of Criminal Procedure, disclosure of the documents was contrary to the interests of the investigation and could entail a breach of the rights of the participants in the criminal proceedings. The Government also submitted that they had taken into account the possibility of requesting confidentiality, but noted that the Court provided no guarantees that once in receipt of the investigation files the applicants or their representative would not disclose the materials in question to the public. According to the Government, in the absence of any possible sanctions for the applicants in the event of their disclosure of confidential information and materials, there were no guarantees as to their compliance with the Convention and the Rules of Court. In the Government’s submission, given the large number of applications concerning the events in the Chechen Republic during the counter-terrorism operation, the disclosure of the documents from criminal investigation files would be highly detrimental to the interests of the State and the participants in the criminal proceedings. The materials produced, in so far as relevant, may be summarised as follows. Documents from the investigation file in case no. 24050 By a decision 20 October 2000 the district prosecutor’s office instituted criminal proceedings upon a complaint of Mr E. about the destruction of his property as a result of a bomb strike on Urus-Martan on 2 October 1999. The proceedings were brought under Article 167 § 2 (aggravated deliberate destruction of, or damage to property) of the Russian Criminal Code. It is clear from the materials submitted that it was only the destruction of Mr E.’s house and property that was being investigated in the context of those proceedings. 88 . In a report of 18 June 2001 an expert confirmed that metal fragments found at the scene of the incident at Mr E.’s destroyed house were pieces of an aerial bomb that had exploded. Documents from the investigation file in case no. 25268 89 . By a decision of 23 April 2001 the Urus-Martan VOVD instituted criminal proceedings under Article 167 § 2 of the Russian Criminal Code upon a complaint of Mr K. about a federal aerial bomb strike on Urus-Martan on 2 October 1999 resulting in the destruction of two properties and inflicting of deaths on eight persons and injuries on seven persons. 90 . By a decision of 8 May 2001 the Urus-Martan VOVD ordered the transfer of case no. 25268 to a military prosecutor’s office for further investigation. The decision reiterated that on 2 October 1999, during a bomb attack by the federal air forces, two houses belonging to Mr Kh. Kerimov and Mr A. Kerimov had been destroyed, eight persons had died and seven had been wounded. In a decision of 19 May 2001 the republican prosecutor’s office set aside the decision of 8 May 2001, stating that it was premature since the materials of the file contained no conclusive evidence of the federal armed forces’ involvement in the incident of 2 October 1999. The decision ordered that the case file be transferred to the district prosecutor’s office for investigation. A report of 5 June 2001 reflected the results of an inspection of the scene of the incident at 224 and 226 Kalanchakskaya Street. A brief report attested that the houses were partly destroyed and stated that no photographs had been taken, or any objects found or seized during the inspection. 93 . A decision of 23 June 2001 ordered that the criminal proceedings in case no. 25268 be suspended. The decision reiterated that on 2 October 1999, during a bomb attack by the federal air forces, two houses belonging to Mr Kh. Kerimov and Mr A. Kerimov had been destroyed, eight persons had died and seven had been wounded. It then stated that the term of preliminary investigation had expired and that all possible investigative actions had been performed. In a decision of 29 July 2001 a supervising prosecutor ordered the resumption of the investigation. The decision required the investigating authorities to establish and question the victims of the attack, to find and seize fragments of bombs, and to order and carry out expert examinations. A report of 7 August 2001 reflected the results of another inspection of the scene of the incident. It appears that during that inspection metal fragments – supposedly those of an explosive device – were found and seized. By a decision of 15 August 2001 the district prosecutor’s office ordered an expert examination of the metal fragments found on 7 August 2001 at the scene of the incident with a view to establishing whether they were pieces of an aerial bomb. It is unclear whether this expert examination was carried out and, if so, what its results were, in the absence of any documents to that effect. It appears that at some point the criminal proceedings were discontinued and then resumed, as by a decision of 1 April 2004 an investigator of the district prosecutor’s office took up the case. A decision of 5 April 2004 granted victim status to the first applicant in connection with the death of her husband, Adlan Kerimov, and injuries sustained by her and her children as a result of the bomb attack by the federal air forces on Urus-Martan on 2 October 1999. The first applicant was interviewed by the investigating authorities on the same date. No documents concerning the period after April 2004 have been submitted to the Court. Documents from the investigation file in case no. 34/00/0008-03 (a) Documents relating to the conduct of the investigation and informing the applicants of its progress 100. By a decision of 21 July 2000 the republican prosecutor’s office instituted criminal proceedings in connection with Mr Khamzayev’s complaint concerning a bomb strike on a residential quarter of Urus-Martan on 19 October 1999, resulting in six persons killed, sixteen wounded, thirteen houses destroyed and twenty-seven damaged. The proceedings were brought under Articles 105 § 2 (aggravated murder) and 167 § 2 (aggravated deliberate destruction of, or damage to property) of the Russian Criminal Code, and the case was transferred to the district prosecutor’s office for investigation. The case file was given the number 24031. A letter of the same date informed Mr Khamzayev of the aforementioned decision, without indicating its date. 101 . In a letter of 31 August 2000 the republican prosecutor’s office drew the attention of the district prosecutor’s office to “unprecedented procrastination” of the investigation in case no. 24031. The letter stated, in particular, that for a period of a month the investigator in charge had not performed any investigative action, and had not questioned victims or witnesses. It instructed the district prosecutor’s office to revive the investigation and to establish the circumstances of the case. In particular, it was necessary to interview all the victims of the bomb strike in question, to grant them victim status and declare them civil claimants; to question the relatives of those deceased and to grant them victim status; to inspect the scene of the incident using photograph and video devices, and to establish and interview eyewitnesses of the events in question. 102 . On an unspecified date in October 2000 the investigator in charge sought the competent prosecutor’s authorisation for extension of the term of the preliminary investigation. The relevant decision listed the findings made by the investigation up to that time. It referred, in particular, to statements of a number of residents of the quarter that had come under attack on 19 October 1999 who, being eyewitnesses to the incident, insisted that the military planes had been flying at a low altitude and that the pilots could therefore have clearly seen that they were targeting a residential quarter. The decision further referred to the residents’ statements to the effect that no illegal fighters had ever lived in their quarter and that property occupied by the rebel fighters had been located on the outskirts of Urus-Martan and by that time had already been hit by federal bombers, and that therefore there had been no reason to bomb a residential quarter inhabited by civilians. The decision went on to note that during the inspection of the scene of the incident large metal fragments of aerial bombs had been found and that, in addition, unexploded bombs were still lying in the courtyards of a number of properties. The decision stated that the evidence obtained proved the involvement of the federal air forces in the attack of 19 October 1999, this finding being confirmed by eyewitness statements, photographs and video-recordings, evaluation reports attesting to the inflicted damage and a report on the inspection of the scene of the incident. 103. In a letter of October 2000 (the exact date is illegible), the military prosecutor’s office of military unit no. 20102 returned the case file to the republican prosecutor’s office stating that a number of formal requirements had not been complied with. The latter referred the case file to the district prosecutor’s office on 30 October 2000 ordering it to remedy the defects. 104 . A decision of 21 January 2001 by the district prosecutor’s office ordered the suspension of the criminal proceedings. It stated that all possible investigative measures had been performed but it had not been possible to establish who was responsible. 105 . In a decision of 7 February 2001 a supervising prosecutor set aside the decision of 21 January 2001 as unfounded and premature. It ordered that the investigation be resumed, that eyewitnesses to the attack be questioned and that the results of medical forensic examinations and ballistic tests be included in the case file. 106 . In a decision of 7 March 2001 the district prosecutor’s office ordered a suspension of the criminal proceedings in case no. 24031, stating that all investigative measures indicated in the supervising prosecutor’s decision of 7 February 2001 had been carried out, but it had not been possible to establish who was responsible. 107. In a letter of 14 April 2001 the district prosecutor’s office replied to Mr Khamzayev that his request for certified copies of the decisions instituting criminal proceedings in case no. 24031 and extending the term of preliminary investigation “had no basis in law” and therefore could not be granted. The letter also indicated that the term of the preliminary investigation into the said criminal case had been extended until 21 January 2001 and that on 10 October 2000 it had been sent to a military prosecutor’s office, which had returned it on 26 October 2000 because of procedural defects. The letter went on to say that ballistic tests had been ordered in the case on 16 November 2000; however, those tests had not yet been carried out. It then noted that on 21 January 2001 the investigation had been suspended, then resumed on 7 February 2001 and again stayed on 7 March 2001. The letter also assured Mr Khamzayev that his requests in the present case would be included in the case file and taken into consideration during further investigation. 108 . In a decision of 29 April 2001 the district prosecutor’s office ordered that the case file be transferred to the military prosecutor’s office of military unit no. 20102 for further investigation. The decision stated that it had been established that the destruction of houses and other property and the deaths and injuries of residents of Urus-Martan on 19 October 1999 had been due to an aerial strike by aircraft of the federal armed forces. This fact had been confirmed by witnesses and victims and by the inspection of the site of the incident, where fragments of aerial bombs and missiles had been found. The involvement of federal military personnel in that attack was obvious, since the illegal armed formations had no aircraft, and the case file therefore had to be transferred to the military prosecutor for further investigation, in order to identify the military unit and military personnel who had committed the offence in question. 109 . In a letter of 11 May 2001 the military prosecutor’s office of military unit no. 20102 transmitted the case file to the republican prosecutor’s office. The letter stated that the district prosecutor’s office’s conclusion that on 19 October 1999 Urus-Martan had come under a bomb strike was based on contradictory witness statements and had no objective confirmation. The letter pointed out, in particular, that whilst some of the witnesses had stated that they had seen planes that had allegedly carried out the strike, some other witnesses had indicated that they had not been able to see planes as on the day in question it had been cloudy and misty. Moreover, according to the letter, there were also discrepancies in witness statements concerning the overall number of planes that had allegedly participated in the attack and their colour. The letter went on to note that the origin of the ammunition fragments seized from two of the properties that had allegedly come under the attack on 19 October 1999 (see paragraph 133 below) had not been established and it had not been ascertained how it was possible for those fragments still to be found a year after the attack. At the end, the letter stated that at the same time the command of the United Groups Alignment and the Russian Ministry of Defence had reported that on 19 October 1999 the federal aircraft had not carried out any strikes on Urus-Martan. 110 . By a decision of 6 June 2001 the district prosecutor’s office resumed the investigation. 111 . A decision of 6 July 2001 ordered that criminal proceedings be suspended owing to the failure to establish the alleged perpetrators and that the case file be transferred to the military prosecutor’s office. The decision was similar to that of 29 April 2001. It stated, in particular, that the involvement of the federal aircraft in the attack had been established by eyewitness statements and results of ballistics tests, which had confirmed that fragments found on the scene of the incident had been those of artillery shells and aerial bombs. It also stated that an unexploded aerial bomb had remained on the ground near the house at 15 Dostoyevskiy Street since the attack of 19 October 1999. 112 . In a letter of 15 May 2002 the republican prosecutor’s office returned case no. 24031 to the district prosecutor’s office for investigation. The letter stated that upon the study of the case-file materials it had been established that the investigation had been carried out with flagrant violations of the procedural law, with the result that the military prosecutor’s office had refused to take over the case. The letter then listed in detail the procedural breaches during the inspection of the scene of the incident and the seizure and examination of ammunition fragments found there and stated that as a result of those breaches the seized splinters could not be admitted in evidence. The letter further noted that to date no medical forensic examinations had been conducted in respect of those deceased and wounded in the attack of 19 October 1999, that those who had suffered pecuniary damage had not been declared civil claimants and that contradictions in eyewitness statements had not yet been resolved. The letter also stated that although the case had repeatedly been returned to the district prosecutor’s office because of all those shortcomings, they had not been remedied. 113 . By a decision of 25 August 2002 the district prosecutor’s office resumed the criminal proceedings. 114. In a letter of 25 August 2002 the district prosecutor’s office forwarded to Mr Khamzayev certified copies of decisions granting victim status to the second, fourth to seventh and fourteenth applicants and a certified copy of a decision declaring the second applicant a civil claimant. The letter also informed Mr Khamzayev that none of the remaining applicants had ever sought to be declared civil claimants in that case. 115 . A decision of 25 September 2002 ordered that the investigation be stayed. The decision stated briefly that all possible investigative measures had been taken but that it had not been possible to establish the alleged perpetrators. 116. By a decision of 1 October 2002 the district prosecutor’s office resumed the investigation. The decision stated that, as requested by Mr Khamzayev, it was necessary to question as witnesses a number of high-ranking military officers who had participated in the counter-terrorism operation in the Chechen Republic. 117. A decision of 1 November 2002 ordered the suspension of the criminal proceedings. It stated that after the reopening of the investigation on 1 October 2002, the investigating authorities had sent a request to interview a number of high-ranking officers, carried out an expert’s examination of an orchard that one of the residents had lost during the attack in question and declared two other persons victims. Therefore, according to the decision, all possible investigative actions had been taken. 118 . A decision of 10 January 2003 set aside the decision of 1 November 2002 as unfounded, stating that the instructions of the republican prosecutor’s office to remedy the procedural breaches had not been complied with. In particular, there had been breaches of procedural law in the seizure of ammunition fragments, which were therefore inadmissible evidence. Moreover, medical forensic examinations of those deceased and wounded had not been conducted and a number of persons who had suffered losses as a result of the incident had not been declared civil claimants in the case. Also, the contradictions in eyewitnesses’ descriptions of the attack had not been resolved. The decision thus ordered that the proceedings be resumed. 119. A decision of 10 February 2003 ordered the suspension of the criminal proceedings. It listed investigative measures taken in January 2003, including the seizure of splinters, ordering their expert examination, granted the status of civil claimant to the victims and concluded that all the investigative actions that had been possible in the absence of those responsible had been carried out. 120 . A decision of 15 February 2003 ordered that the investigation be resumed. The decision indicated that a number of investigative actions should be carried out in the case, and namely medical forensic examination of the deceased and wounded. In a letter of February 2003 (the exact date is unclear), Mr Khamzayev was informed of the recent developments in the case. 121. By a decision of 15 March 2003 the criminal proceedings in case no. 24031 were adjourned owing to the failure to establish the alleged perpetrators. 122 . By a decision of 18 April 2003 a prosecutor of the military prosecutor’s office of the United Group Alignment ordered that the investigation be resumed. It can be ascertained that at this stage the case was assigned the number 34/00/0008-123. On the same date the military prosecutor’s office of the United Group Alignment informed the district prosecutor’s office of this decision and invited it to notify those declared victims of the reopening of the case. In another letter of the same date the military prosecutor’s office of the United Group Alignment apprised Mr Khamzayev of its decision to resume the investigation. 124. In a decision of 18 April 2003 the investigator in charge sought the authorisation of a competent prosecutor to extend the term of preliminary investigation until 18 August 2003. The decision stated that a large number of investigative actions should be taken. In particular, it was necessary to question high-ranking officers in command of the counter-terrorism operation in the Chechen Republic; to identify and interview an officer in charge of the operation in Urus-Martan on 19 October 1999, an officer in command of the pilots who had carried out bomb strikes on Urus-Martan on the date in question and the pilots themselves; to examine and, if necessary, seize relevant military documents, including a register of combat air missions and tactical maps; to examine the materials of inquiries carried out by the military authorities in connection with Mr Khamzayev’s complaints about the attack; to conduct expert examinations, including a medical forensic examination of those deceased and wounded in the incident under investigation, and to perform other necessary investigative actions. 125 . A decision of 17 November 2003 terminated the criminal proceedings in case no. 34/00/0008-It provided a description of the situation in the Chechen Republic and, more specifically, in the vicinity of Urus-Martan in late September – October 1999 and an account of the aerial attack of 19 October 1999 identical to those submitted by the Government (see paragraphs 28-35 above). 126 . The decision referred, in particular, to witness interviews of Mr Af. and Mr Chay., intelligence officers, who had carried out reconnaissance in Urus-Martan in the relevant period. They both stated that the town had been occupied by the Wahhabis, who had significantly fortified it and prepared for long-term defence. According to them, the depth of defence extended to three to four quarters from the outskirts towards the town centre; the fighters had dug trenches and dugouts, filled pits with oil to be able to explode them on the approach of the federal forces, and organised numerous firing posts in residential buildings. Mr Af. also stated that the majority of the local residents had left the town, and that an insignificant number of residents remaining in Urus-Martan had been forcibly kept by the extremists who had used them as human shields. The decision also referred to statements of Mr Kh., a resident of Urus-Martan, who pointed out, in particular, that at the material time more than half of the civilian residents had left the town because of persecutions by illegal fighters, who had detained, robbed, killed and used as human shields those residents who had shown resistance to them. 127. The decision also quoted the conclusions of the operative and tactical expert examination (see paragraph 159 below) to the effect that the decision to carry out the aerial strike in question had been well-founded and timely and that the relevant military authorities had taken measures to minimise casualties among civilian residents of Urus-Martan. It then concluded that there had been no elements of criminal offences punishable under Articles 105 § 2 and 167 § 2 of the Russian Criminal Code in the actions of General Major Sh. and General Lieutenant G. and that therefore the criminal proceedings against them should be discontinued. (b) Documents relating to investigative measures 128. In a request of 29 July 2000 the district prosecutor’s office instructed the Urus-Martan VOVD to establish and interview the victims of the attack of 19 October 1999, relatives of those deceased; to grant them victim status and the status of civil claimant in the case; to inspect carefully the scene of the incident; to take photographs and to make a video-recording of the site, and, if possible, to seize exhibits, including fragments of bombs, to carry out ballistic tests and to perform other necessary investigative actions. 129. In a letter of the same date the district prosecutor’s office requested the military prosecutor’s office of military unit no. 20102 to send them material of an inquiry into Mr Khamzayev’s complaint concerning the attack of 19 October 1999. 130. In letters of 24 August 2000 the district prosecutor’s office reminded the Urus-Martan VOVD and the military prosecutor’s office of military unit no. 20102 of its requests of 29 July 2000, stating that to date they had not been complied with. 131. Decisions taken in the period between 7 and 19 September 2000 granted victim status to the third to seventh, ninth, tenth, fourteenth, sixteenth, eighteenth and nineteenth applicants (see paragraph 80 above). As can be ascertained from the decisions, the said applicants were apprised of them on the same dates. 132 . Reports of 3 and 5 October 2000 on the inspection of the scene of the incident described in detail the state of a number of properties that had come under the aerial attack of 19 October 1999. In particular, the reports attested to the damage inflicted on the properties and possessions inside them. They also described bomb craters on the plots of land where the properties were situated and indicated that during the inspection metal shrapnel resembling fragments of an artillery shell had been found and seized. Among the damaged properties, the reports mentioned the second applicant’s property at 15 Dostoyevskiy Street, the seventh applicant’s property at 24 Dostoyevskiy Street and the fourteenth applicant’s property at 23 Mayakovskiy Street. The reports referred to the aforementioned applicants as the owners of the properties. Photographs taken during the inspection of the scene of the incident were enclosed with the reports. They represented a number of damaged properties, including those of the fifth, sixth, seventh and fourteenth applicants. 133 . By two similar decisions of 5 October 2000 the investigator in charge ordered the seizure of metal fragments resembling pieces of an aerial bomb or an artillery shell from two of the properties that had come under the attack of 19 October 1999. 134 . A decision of 16 November 2000 ordered an expert examination of metal fragments found at the scene of the incident with a view to establishing their origin. It does not appear that any expert examination was carried out pursuant to that decision, as on 6 June 2001 the investigator in charge ordered another expert examination of those fragments. An expert report of 25 June 2001 confirmed that the fragments in question were pieces of artillery shells, aerial bombs and ammunition, the origin of which it had not been possible to establish. 135. Reports of 9 February 2001 attested respectively to the seizure and examination of a videotape, with a record of the results of the attack of 19 October 1999. 136. In a decision of 9 February 2001 the investigator in charge ordered a medical forensic examination with a view to establishing the cause of death of Apti Abubakarov, Aminat Abubakarova, Vakha Tseltsayev, Makharbi Lorsanov, Yakub Israilov and Minkail Lorsanov as well as the degree of damage caused to the health of a number of persons wounded during the attack of 19 October 1999, including the second, tenth and sixteenth applicants. 137. Decisions taken in the period between 17 and 18 September 2002 declared the fifth, sixth, seventh and fourteenth applicants civil claimants in the case. The said applicants each submitted to the investigating authorities a claim describing the property lost during the attack of 19 October 1999 and indicating its overall value and the amount of non-pecuniary damage suffered by them. They were notified of the decisions granting them the status of civil claimant on the same dates. 138. In a request of 17 October 2002 the district prosecutor’s office instructed the military prosecutor’s office of the Moscow Garrison to interview as witnesses a number of high-ranking military officers about the circumstances of the attack of 19 October 1999. Mr Khamzayev was notified of that request by a letter of the same date. 139. A decision of 29 October 2002 declared the third applicant a civil claimant in the case. Decisions of 21 January 2003 declared the second and fourteenth applicant civil claimants in the case. The relevant applicants were apprised of the decisions on the same dates. 140 . Decisions of 17 January 2003 ordered the seizure of pieces of shrapnel from several residents of the quarter that had come under attack on 19 October 1999, the seventh and fourteenth applicants being among their number. Reports of the same date described the splinters seized. 141. A decision of 19 January 2003 ordered that the splinters seized on 17 January 2003 be included in the case file as evidence. A report of the same date described the results of the examination of those splinters by the investigator in charge. 142. A decision of 25 January 2003 ordered an expert examination of the pieces of shrapnel seized on 17 January 2003 with a view to establishing their origin. 143. In a letter of 17 February 2003 the district prosecutor’s office requested the Urus-Martan Administration to establish a competent commission to assess damage inflicted on the individual houses during the attack of 19 October 1999 and to draw up evaluation reports. 144 . In another letter of the same date the district prosecutor’s office informed the military commander’s office of the Urus-Martan District ( военный комендант Урус-Мартановского района ) that after the bomb strike of 19 October 1999 two unexploded bombs remained lying on the plots of land at two private properties and invited the military commander’s office to take measures to dispose of those bombs. A similar letter was sent to the military commander’s office of the Chechen Republic ( военный комендант Чеченской Республики ) on 26 February 2003. 145. Decisions of 16 February 2003 ordered a medical forensic examination of those wounded during the attack of 19 October 1999, including the second and eighteenth applicants. 146. In a letter of 27 February 2003 an expert informed the investigator in charge that a medical forensic examination could be carried out only on the basis of original medical documents and in the presence of the persons in respect of whom such examination had been ordered. The expert thus returned the orders for medical forensic examination and enclosed certificates to the investigator in charge stating that it was impossible to conduct the required examination on the basis of those documents. 147. On 4 March 2003 the investigator in charge requested Urus-Martan hospital to adduce medical files of the six residents of Urus-Martan killed during the incident of 19 October 1999. 148. According to a report of 23 April 2003, on the date in question the register of the combat air missions of the federal forces in the Chechen Republic for the period between 8 and 27 October 1999 and the tactical map for the period between 13 and 26 October 1999 were examined by the investigating authorities. The report then described in detail the entries made in those documents as regards the air combat missions on 19 October 1999. It also indicated that, according to those documents, Urus-Martan had not been attacked by the federal aircraft on the date in question and that the only targets hit that day had been located at distances of one and twenty-two kilometres from the town. 149. A report of 30 April 2003 reflected the result of the examination of the register of military actions of the aircraft of the United Group Alignment ( журнал боевых действий авиации ОГВ ) for the period from 29 September 1999 to 20 January 2000. According to the report, on 19 October 1999 two entries had been made in the register; they concerned two attacks by federal military helicopters against illegal fighters who had been located about forty kilometres from Urus-Martan. There was no other information regarding the events of 19 October 1999 in the register. 150. As can be ascertained from a report of 5 May 2003, which is barely legible, on that date the investigating authorities examined the register of military actions of the United Group Alignment comprising the period between 25 September and 29 November 1999. It appears that in the register there were no entries to the effect that any aerial strikes had been carried out on Urus-Martan on 19 October 1999. 151. In a letter of 16 May 2003 the district prosecutor’s office forwarded to the military prosecutor’s office of the United Group Alignment medical certificates attesting the injuries received by residents of Urus-Martan during the attack of 19 October 1999. The letter also indicated that in Urus-Martan hospital there were no medical files of those who had been killed during the strike. It further stated that the district prosecutor’s office was unable to send to the military prosecutor’s office of the United Group Alignment forty-one splinters seized at the scene of the incident as those splinters had been sent for an expert examination and had not been given back by experts. Lastly, the letter stated that three aerial bombs found at the scene of the incident had been destroyed by specialists. 152. In letters of 31 May and 5 June 2003 the investigator in charge requested relevant military units to provide information on the identity of the pilots who had carried out bomb strikes at a distance of one kilometre from Urus-Martan on 19 October 1999. 153. In letters of 3 June 2003 the investigator in charge requested various competent authorities to provide information as to whether the residents of Urus-Martan listed in that letter had been involved in the activities of illegal armed groups. The list of names included those killed during the attack of 19 October 1999 as well as those who had been granted victim status in connection with that incident. On 29 October 2003 the Russian Federal Security Service replied that four persons included in the list had participated in the activities of the illegal armed groups. 154 . In two letters of 10 June 2003 the acting commander of military unit no. 22290 – an air-force unit that had participated in military operations in the vicinity of Urus-Martan in the relevant period – stated in reply to the military prosecutor of the United Group Alignment that it was not possible to submit their unit’s tasking schedule ( плановая таблица ) for 19 October 1999 as it had been destroyed in November 2000, given that pursuant to a relevant order of the Russian Ministry of Defence its storage time had been one year. The letters went on to say that in the relevant period no register of orders received and given had been maintained, no register of combat air missions had been maintained, no register of military actions had been maintained and no tactical map had been maintained. The letters also stated that the means of objective control – testorograms and photographs – for 19 October 1999 had been unavailable as they had been destroyed a year after that date, as prescribed in a relevant order of the Russian Ministry of Defence, and no tape-recordings were available as they had only been kept for three months. Lastly, the letters indicated that the register of the commander’s military orders and the map for the commander’s orders for military actions had been sent to Rostov-on-Don in December 2000. 155. An expert report of 20 June 2003 stated that the metal fragments seized on 17 January 2003 (see paragraph 140 above) were pieces of industrially manufactured metal objects that had been destroyed by explosion of a contact charge and that some of them might be fragments of ammunition. 156 . A report of 2 July 2003 on the examination of a video-recording of the process of excavation and destruction of unexploded aerial bombs that had remained after the attack of 19 October 1999 stated that it had been established that they had been highly explosive bombs of 250-270 kg calibre. 157 . In a letter of 3 July 2003 the commander of military unit no. 11731, which at the relevant time was participating in military actions in the vicinity of Urus-Martan, stated that all the documents relating to operations in October 1999, and, namely, a register of orders given and received, a register of combat air missions, a register of military actions, combat orders, pilots’ reports on their missions and a tactical map, had been destroyed on 13 December 2001 as they had lost their practical value and had had no historical or scientific value. 158. By a decision of 20 October 2003 the investigator in charge ordered an examination by operative and tactical expert with a view to establishing whether there had been any shortcomings in the organisation and execution of a bomb strike in the vicinity of Urus-Martan on 19 October 1999 on the part of the commander of the Group “West”, General Major Sh., and the commander of the United Air Forces Group, General Lieutenant G. 159 . A report of 16 November 2003 gave the results of the operative and tactical experts’ examination. The experts stated that General-Major Sh.’s decision to carry out bomb strikes on 19 October 1999 on fortified points and bases of illegal armed groups and on their radio and electronic facilities had been well-founded and timely, as at that time the town of Urus-Martan had been occupied by illegal fighters, amounting to over 1,500 persons, who had fortified it and had not been prepared to surrender and who had been reinforced with a new group of around 300 illegal fighters a day before the attack. According to the experts, any other methods of action by federal forces, such as a ground attack, storming, forcing out, would have led to unjustified losses among them. The experts also stated that, when organising the bomb strike in question the command of the Group “West” had taken certain measures with a view to minimising civilian casualties. In particular, according to the report, the military authorities had opted for pinpoint strikes, which had resulted in only six people being killed and seventeen wounded, four of the latter belonging to illegal armed groups. On the other hand, considerable losses had been caused to the illegal fighters who, as a result, had subsequently, on 7 and 8 December 1999, surrendered the town without fighting with the result that there had been no casualties among the federal armed forces. The report thus concluded that the actions of General Major Sh. and General Lieutenant G. had complied with all relevant instructions and regulations, including the Infantry Field Manual, that the decision to carry out a strike on 19 October 1999 had been reasonable and that the federal aircraft had been used in Urus-Martan on 19 October 1999 pursuant to competent officers’ decision and taking into account the existing situation and intelligence data. (c) Witness interviews 160 . The case file contains written explanations given on 18 March 2000 by Mr K. – the Head of the Headquarters of the Group “West” – to the prosecutor of military unit no. 20102. According to them, during the period of 19-20 October 1999 the Group “West” had been entrusted with a mission to force out illegal armed groups from the town of Urus-Martan. In Mr K.’s submission, in order to avoid casualties among civilian residents of Urus-Martan, the federal command had repeatedly applied to them with a request for the Wahhabis to discontinue their resistance and leave the town and had warned the residents that otherwise the Wahhabis would be destroyed by artillery fire and aerial attacks. Therefore, according to Mr K., the civilians residing in Urus-Martan had been warned; however, given that the illegal fighters had not surrendered, pinpoint bomb strikes had been carried out on their bases. In Mr K.’s submission, bomb strikes had been carried out by the military aircraft on the basis of information obtained by the latter’s intelligence service. Mr K. also noted that in December 1999 the federal forces had blocked Urus-Martan for further “sweeping-up” operations. During a witness interview of 18 April 2003 Mr K. stated that he could not give any explanations regarding the events of 19 October 1999, as he did not remember anything. He also stated as regards his written explanations of 18 March 2000 that the signatures on that document were his, but that he did not remember that he had actually stated what was written there. He added that at present he was unable to comment on those explanations given that more than three years had elapsed since the date when they had been given. 161. In their explanations of 4-6 July 2000 a number of eyewitnesses, including the fifth, sixth, ninth and fourteenth applicants, described the attack of 19 October 1999, stating that on the date in question, approximately between 30 and 30 p., two Russian military planes had arrived and that one of them had carried out strikes outside the territory of Urus-Martan, whereas the other one had bombed the residential quarter in which the eyewitnesses lived. The fifth applicant and Mr A., another resident of the quarter that had come under the attack, also stated that the residents of Urus-Martan had not been warned about any bomb strikes. 162. During witness interviews in the period from 7 September to 4 October 2000 the second to seventh, ninth, tenth, fourteenth, sixteenth, eighteenth and nineteenth applicants described the circumstances of the attack of 19 October 1999. Fifty-one other residents of the quarter that had come under the attack were also questioned during the period between 7 September and 5 October 2000 and gave similar accounts of the incident in question. In the period between 7 and 12 July 2001 nine residents, including the nineteenth applicant, were again interviewed in connection with the incident. 163. In explanations of 12 March 2001, Mr Z. – a senior officer of military unit no. 45881 – stated that, according to that unit’s tactical map, the town of Urus-Martan had not come under aerial attacks in the period between 18 and 27 October 1999, and that on 19 October 1999 at 30 p.high-explosive 250 kg aerial bombs had been launched against a group of fighters located one kilometre from the south-eastern outskirts of Urus-Martan. As regards the information in the register of combat air missions (see paragraph 177 below), Mr Z. stated that the coordinates mentioned there had been situated twenty-six to twenty-seven kilometres from Urus-Martan. During a witness interview of 12 November 2002 Mr Z. confirmed that he had been seconded to the Chechen Republic at the material time but stated that from 11 October to 28 November 1999 he had been on leave outside the territory of the Chechen Republic, and therefore he had never participated in the planning and organisation of the aerial attack of 19 October 1999. He added that he could not be a witness in the case concerning that incident, as he had been serving in a military unit other than that which had participated in that attack. 164. In a witness interview of 21 January 2003 Mr , at the material time a First Deputy Head of the General Headquarters of the Russian Armed Forces, stated that, as far as he knew, during the counter-terrorism operation in the Chechen Republic no bomb or missile strikes, or any other aerial attacks had been planned or carried out on inhabited settlements. According to Mr , such strikes had been carried out only on pre-selected targets relating to the activities of illegal armed groups. 165. In his witness interview of 25 January 2003 Mr Mikh., at the relevant time the Deputy Commander-in-Chief of the Russian Air Forces, stated that he had not given any orders to carry out a bomb strike on the town of Urus-Martan on 19 October 1999, and that he was unaware of any bombing of Urus-Martan by federal aircraft. 166. During questioning of the same date Mr Ch., a Deputy Head of the Chief Headquarters and the Head of the Operative Administration of the Air Forces, made similar statements. 167. In a witness interview of 24 April 2003 Mr A., a high-ranking military officer who at the material time had been seconded to the Chechen Republic, stated that he knew nothing of a bomb strike on Urus-Martan on 19 October 1999 and was therefore unable to provide any relevant information in that respect. He was also unable to give any explanation as regards his reply of 15 February 2001 to Mr Khamzayev’s complaint concerning the attack of 19 October 1999 (see paragraph 57 above). 168. In a witness interview of the same date Mr B., a high-ranking officer who at the relevant time had been seconded to the Chechen Republic, stated that he knew nothing about the attack of 19 October 1999 on Urus-Martan as in that period he had been in charge of operations in another area of the Chechen Republic. He was unable to provide any information other than that indicated in his reply to Mr Khamzayev dated 23 November 2000 to the effect that the federal air forces had never bombed Urus-Martan. 169. During questioning on 25 April 2003 Mr G., at the material time the Commander of the United Air Forces Group in the Chechen Republic (see paragraph 29 above), stated that he did not remember the events of October 1999, as much time had elapsed since them, and that all the actions of the federal air forces for that period had been recorded in the register of combat air missions and tactical map. 170. During questioning on 29 April 2003 Mr P., a high-ranking military officer seconded to the Chechen Republic at the material time, made similar statements. 171 . On 9 and 10 June 2003 the investigating authorities questioned a number of officers of the federal air forces who had taken part in military operations in the vicinity of Urus-Martan at the relevant time. Two pilots, Par. and Mak., who in the relevant period had been seconded to the Chechen Republic and served in military unit no. 22290, stated that in October 1999 they had received an order from their commander, Colonel Mar., to carry out strikes in pre-selected rectangles on targets representing illegal armed groups on the northern and north-western outskirts of Urus-Martan. According to the pilots, when carrying out the strikes they used missiles rather than aerial bombs given that the targets had been located very close to the town. The pilots stated that they had not used aerial bombs during their combat mission and had not carried out any strikes on residential quarters of Urus-Martan. They also insisted that any technical errors during the strikes, deviation from pre-selected targets and accidental striking had not been possible. 172 . In his witness interview of 16 June 2003 Mr , who in the relevant period had been seconded to the Chechen Republic as an officer of the Russian Ministry for Emergency Situations, stated that he had participated in deactivation of unexploded bombs that had remained, inter alia , in Mayakovskiy Street in Urus-Martan after the attack of 19 October 1999. He confirmed that on 2 and 3 April 2003 two unexploded aerial bombs had been excavated and then taken away and destroyed. 173 . During questioning on 2 and 3 July 2003 four pilots, Pog., Ab., and Sh., who at the material time had been seconded to the Chechen Republic and served in military unit 11731, stated that they had performed a flight in a group of four planes on 19 October 1999 to the southern mountainous area of the Chechen Republic. According to Mr Pog., the planes had been laden with aerial bombs of calibre 250 or 500 kg. The pilots also stated that the results of the bombing had been recorded by means of objective control devices – video recorders and photographic cameras – and after the flight had been given to a commanding officer. The pilots insisted that they had been instructed to launch bombs in an area situated at a distance of no less than three kilometres from any inhabited settlement and that they had never carried out any strikes on Urus-Martan. They also stated that they had never heard of any such incidents, as in that case an internal investigation should have been carried out and those responsible should have been punished. 174 . The case file also contains witness statements of Mr S., a pilot of a federal plane that had been shot down by rebel fighters on 4 October 1999 with the result that the other pilot of that plane had died and Mr S. had been captured by fighters. Mr S. stated that on the date in question they had been given orders to search for another federal plane that had been shot down by extremists the previous day, and then described the incident of 4 October 1999. (d) Other documents 175 . The case file contains evaluation reports ( дефектные акты ) drawn up by the Urus-Martan Administration on 21 January 2000 in respect of the properties at 15, 19 and 24 Dostoyevskiy Street. The reports referred to the second, fifth and seventh applicants respectively as the owners of those properties and listed in detail the damage inflicted thereon. 176. As can be ascertained, at some point the second, fourteenth and nineteenth applicants filed with the investigating authorities a claim listing in detail their possessions lost during the bomb strike and indicating their value and the overall amount of pecuniary damage suffered. 177 . An extract from a register of combat air missions signed by Mr K. (see paragraph 160 above) indicated that on 19 October 1999, between 3 and 10 p., a pair of SU-25 planes had carried out a bomb strike in a rectangle with coordinates [X] and [Y], that a truck with illegal fighters had been destroyed in a rectangle with coordinates [X1] and [Y1] and that a car with illegal fighters had also been destroyed. 178 . A telegram of 17 November 2000 sent by a commanding officer of military unit 41001 stated that in October 1999 the targets selected for aerial strikes included illegal fighters’ bases, their fortified points, their ammunition depots, and the like, that during the relevant period the residential quarter in which the applicants lived had not been selected as a target, that on 19 October 1999 no pilots had been given an order to carry out a bomb strike on that quarter, and that no such strike had taken place on the date in question.

Russian Federation

On 23 June 2002 the applicant tried to smuggle alcohol to his friends, who were detained in prison. When police officers Mr S. and Mr A. tried to arrest him he apparently resisted the arrest. Subsequently, the applicant was accused of assaulting officer S. In October 2002 the applicant was charged with violence against a public official. The investigator in the Zavolzhskiy district prosecutor's office of Yaroslavl noted in his decision that the applicant had committed an administrative offence of smuggling prohibited goods to detainees; he had resisted lawful arrest during the commission of that offence; the latter act constituted a criminal offence punishable under Article 318 of the Criminal Code. The investigator's decision also contained a list of procedural rights under Article 47 of the Russian Code of Criminal Procedure (see paragraph 20 below). It appears that the applicant was given a copy of the above decision. During the preliminary investigation, officer S. explained that on 23 June 2002 when together with officer A. he was patrolling in the vicinity of the prison they had noticed the applicant and two other persons throwing certain objects over the prison wall. When they had attempted to arrest them, the applicant and others had assaulted them and tried to escape. Officer A confirmed his fellow officer's statement. The applicant disagreed with their version of the events and claimed in essence that the police officers had been drunk and had beaten him up and shot his friend. At the trial, on 5 November 2002 the applicant made a written statement declining the services of his counsel. He declared that this waiver was not based on any “financial considerations” and that he would continue to ensure his own defence. The hearing was adjourned because certain witnesses, including officers S. and A., had not answered the court summons. 11 . Thereafter, the trial court received a note of a telephone conversation between the court registry and A.'s grandmother. The latter explained that Mr A. had resettled to Moscow for permanent residence; that she had informed him on 5 November 2002 about the court summons and that he had asked her to inform the court that he maintained his earlier statement and could not attend the trial because his wife was about to be admitted to a maternity hospital. 12 . On 11 November 2002 the trial judge received a note of a telephone conversation between the court registry and investigator , who informed the judge that Mr A. had reportedly moved to the Moscow Region without giving his new address; Mr S. was still an officer and was living at the same address. On 15 November 2002, noting the officers' absence, the trial judge enquired with the parties as to the admission in evidence of the officers' pre-trial statements. As can be seen from the trial verbatim record, both the prosecutor and the applicant consented to the reading out of the officers' pre-trial statements. The court also referred to the statements from the prison guard Mr P., who had been on duty that day and had seen several persons throwing certain objects over the prison wall. The court also heard guard K., who had been patrolling at the territory of the prison and had seen the bottles being thrown over the prison wall. According to two medical reports, Mr S. and Mr A. were sober on 23 June 2002 and Mr S. had various injuries on his body. During a pre-trial identification, he had pointed to the applicant as his assailant. The court rejected as unreliable the applicant's version of the events, which was supported by three witnesses on his behalf. The court also dismissed the fourth witness's allegation that one of the officers had been drunk on 23 June 2002. By a judgment of 18 November 2002, the Zavolzhskiy District Court of Yaroslavl convicted the applicant as charged and sentenced him to three years and six months' imprisonment. The applicant appealed contending that the court had not given a proper weight to the fact that despite the summons Mr S. and Mr A. had not appeared before the trial court and thus had not been examined at the trial. 18 . On 14 January 2003 the Yaroslavl Regional Court upheld the judgment in the following terms: “The court rightly founded the judgment on the testimonies by S. and A. because those testimonies are coherent, non-contradictory and correspond to the actual circumstances of the case. They were corroborated by other evidence presented in the judgment, such as the medical report indicating that S. had [injuries], P.'s statement..., K.'s statement...The reference to the failure of S. and A. to appear before the court on the summons is not a valid reason for annulment of the judgment because the court obtained the parties' opinion on the possibility of reading out their depositions in view of their absence from the trial; [the applicant] did not object to the reading out...” In 2003 the Regional Court dismissed the applicant's request for supervisory review of the above judgments. In 2007 the Prosecutor of the Yaroslavl Region applied for supervisory review, considering that there was no corpus delicti and that there was no case to answer against the applicant. On 25 October 2007 the Acting President of the Regional Court dismissed the prosecutor's application and refused leave to supervisory review.

A. Background to the case In 1996 and 1997 negotiations were conducted between, among others, the World Jewish Congress and Swiss banks concerning compensation due to Holocaust victims for unclaimed assets deposited in Swiss bank accounts. Against that background Carlo Jagmetti, who was the Swiss ambassador to the <COUNTRY> at the time, drew up on 19 December 1996 a “strategy paper”, classified as “confidential”, which was faxed to Thomas Borer, head of the task force that had been set up to deal with the matter within the Federal Department of Foreign Affairs in Berne. Copies were sent to nineteen other individuals in the Swiss government and the federal authorities and to the Swiss diplomatic missions in Tel Aviv, New York, London, Paris and Bonn. Below are some extracts from the document, based on the article “That’s all we need”, which appeared in the Tages-Anzeiger on 27 January 1997, the day after the applicant’s articles were published (unofficial translation): “Ambassador, The campaign against <COUNTRY> and the huge claims accompanying it, reflected in the activities of the Jewish organisations, the statements of American politicians and the class actions, will greatly occupy the authorities and public opinion on both sides of the Atlantic for some time to come ... However, the real reverberations will not be felt until the inquiries which are to be launched have been completed, those claims that are well-founded have been met, the proceedings have been concluded and matters have been put right in historical, political, legal and moral terms. That will take at least three years, possibly much longer. Moreover, it is impossible to predict today the course of Swiss domestic and foreign policy in the years ahead. In any event, the political, economic and social challenges facing the country internally and the uncertainty surrounding the European issue (the EU, security, etc.) and globalisation are already prompting some painful soul-searching by the Swiss people. The comments now coming from America are all we need. Suddenly, on top of the present and future uncertainties, we must come to terms with the past. The campaign against <COUNTRY>, therefore, is being conducted in an already difficult climate ... All <COUNTRY>’s efforts are aimed at preserving the country’s integrity, forestalling or at least warding off dangers and maintaining international relations (in particular with the <COUNTRY>) during the crisis and beyond while avoiding any lasting damage. All interim goals must be viewed solely in relation to the main objective. Short-lived successes such as ‘truces’, temporarily positive reactions from the media, satisfaction at seeing certain projects put in hand, historical insights which may be favourable to <COUNTRY> or constructive remarks from our negotiating partners abroad should not blind us to the long-term reality. Individual battles may be important, but ultimately it is the war that <COUNTRY> must win ... If we assume that the demands of the Jewish organisations and Senator D’Amato must be satisfied as a matter of urgency, and that then calm will be restored, an actual deal might be struck with the organisations concerned. Instead of just making the ‘gesture’ currently being speculated on, we could act immediately to resolve the matter by paying a lump sum in order to settle all the claims once and for all. Given that a large number of groups and countries are affected by this issue and that <COUNTRY> is now being called to account, as it were, by the international community, the plan must have both a national and an international dimension and be based on a long-term strategy. It might look something like this: – the measures planned to date (publication of the expert report on the compensation agreement with the countries of eastern Europe, commencement of the work of the historical commission, inquiries by the Volcker Committee) will be effectively implemented by <COUNTRY> using the necessary resources and within a realistic time frame, with any difficulties being overcome in a determined manner; – the dialogue with all the groups concerned must be continued in a correct and conciliatory manner, without making interim concessions which could jeopardise the entire process; – as far as the activities of foreign governments and parliaments are concerned (particularly in the <COUNTRY> and the <COUNTRY>), the aim should be to bring about courteous bilateral cooperation focusing primarily on establishing the truth and avoiding any polemics. Where necessary, of course, a clear and firm stance should be taken, particularly if <COUNTRY> is disparaged or accused without absolutely clear ‑ cut reasons; – when significant interim findings have been obtained and, especially, when all the inquiries have been completed, negotiations will need to be conducted on the conclusions to be drawn and on how any funds released should be used. These should be conducted at governmental level, either multilaterally, if possible with all the countries concerned (including the Allies, those countries that were neutral at the time, <COUNTRY> and <COUNTRY>), bilaterally with <COUNTRY> (which would mean giving up a long-standing position and accepting the risk of adverse reactions from the Arab world), or with non-governmental organisations. Much will depend on the strategy of our adversaries. However, the issue must be made an international one and other countries must be held to account. <COUNTRY>, which has set a good example with its inquiries, should assume a leading role and hence seize the initiative ... It must also be borne in mind that scenarios and strategies are not immune to outside influences and that events may occur or a new trend emerge at any time, calling everything into question or at least requiring considerable flexibility. Accordingly, a mix of action based on international law and interim payments would, if possible, be more realistic. Opting for this kind of mix from the outset would almost inevitably mean taking a pragmatic approach that evolves from day to day and scarcely deserves the ambitious description of a ‘strategy’ ... <COUNTRY> cannot afford to just muddle through in this matter. Whatever strategy is chosen, action will be needed on the external front to lend credibility to Swiss efforts. This can be done by taking the same – essentially reactive – stance taken hitherto or by adopting a more innovative approach. As part of the latter I would advocate campaigning systematically in political circles and in the media, maintaining ongoing contacts with the American administration in order to compare results and refine methods, cultivating relations with the Jewish organisations wherever possible in a friendly manner but without servility, and conducting a well-orchestrated public relations campaign including, for instance, seminars and round-table sessions. On the subject of public relations, however, statements should be made only if there is something new to be said and the time and place are right. Pilgrimages abroad are best avoided on tactical grounds and in view of the domestic policy aspects ... The advantages and drawbacks of the different approaches are fairly obvious. However, it is clear that, from a historical, political and legal perspective, a ‘deal’ will never be satisfactory. Ideally, all the same, the legal strategy should be chosen. This places considerable demands on all concerned and calls for initiative, time and energy, to say nothing of the cost. In view of the main objective, however, we would be well advised to change the habit of a lifetime and make the necessary funds available without unseemly haggling. Let me repeat: this is a war <COUNTRY> must wage and win on the external and domestic fronts. Most of our adversaries are not to be trusted. The potential damage to <COUNTRY> from a boycott or perhaps even legislative action by other countries is immense. Even the figures for our national pension insurance scheme or the cost of the new trans-Alpine rail links, for instance, are liable to look modest by comparison. <COUNTRY> must present a united and determined front ... Carlo Jagmetti, Swiss Ambassador” The applicant obtained a copy. It seems clear that he could not have acquired possession of the document without a breach of official secrecy by a person whose identity remains unknown. B. The impugned articles by the applicant On Sunday 26 January 1997 the Zürich Sunday newspaper, the Sonntags-Zeitung , published the following article by the applicant (unofficial translation): “Ambassador Jagmetti insults the Jews [original title in German: Botschafter Jagmetti beleidigt die Juden ] Secret document: ‘Our adversaries are not to be trusted’ [ Geheimpapier: ‘Man kann dem Gegner nicht vertrauen ’] by [the applicant] Berne/Washington – Another scandal involving the Swiss ambassador to the <COUNTRY>: Carlo Jagmetti, in a confidential strategy paper on the assets of Holocaust victims, talks of the ‘war <COUNTRY> must wage’, and of ‘adversaries’ who ‘are not to be trusted’. The paper is classified as ‘confidential’. It was written by Carlo Jagmetti, Swiss ambassador to the <COUNTRY>. On 19 December the 64-year-old high-ranking diplomat in Washington sent the task force in Berne his views on what he described as a ‘campaign against <COUNTRY>’. This report has been obtained by the Sonntags ‑ Zeitung , and is dynamite. In terms of its content, it is an unremarkable assessment of the situation. But the aggressive language used by Carlo Jagmetti has the effect of an electric shock on the reader. ‘It is a war,’ writes the ambassador, ‘a war <COUNTRY> must wage and win on the external and domestic fronts.’ He describes Senator D’Amato and the Jewish organisations as ‘adversaries’, saying that ‘most of our adversaries are not to be trusted’. In his paper, Carlo Jagmetti mentions the possibility of concluding an agreement, because ‘the demands of the Jewish organisations and Senator D’Amato must be satisfied as a matter of urgency’. He uses the word ‘deal’ in this context. Ambassador Jagmetti suggests ‘paying a lump sum’ to the Jews in order to settle ‘all the claims once and for all’. Then, he writes, ‘calm will be restored’. Speaking of the ‘external front’, Carlo Jagmetti says that <COUNTRY> should ‘campaign systematically in political circles and in the media’. Relations with Jewish organisations should be ‘cultivated in a friendly manner but without servility’, with the help of a firm of lawyers, and a ‘well-orchestrated public relations campaign [should be conducted], including seminars and round-table sessions’. No comments on this strategy paper by the eminent diplomat – due to retire in the spring – were forthcoming yesterday either from Flavio Cotti [head of the Swiss diplomatic service] at the Federal Department of Foreign Affairs or from the task force headed by Thomas Borer. Carlo Jagmetti had no comment to make to this newspaper. Martin Rosenfeld, President of the Swiss Federation of Jewish Communities (SIG/FSCI) described Carlo Jagmetti’s remarks as ‘shocking and profoundly insulting’. He said he foresaw ‘a difficult run-up to retirement’ for Mr Jagmetti.” In the same edition of the Sonntags-Zeitung of 26 January 1997, another article by the applicant read (unofficial translation): “The ambassador in bathrobe and climbing boots puts his foot in it [ Mit Bademantel und Bergschuhen in den Fettnapf ] Swiss Ambassador Carlo Jagmetti’s diplomatic blunderings [ Der Schweizer Botschafter Carlo Jagmetti trampelt übers diplomatische Parkett ] by [the applicant] Berne/Washington – Swiss Ambassador Carlo Jagmetti constantly gets himself noticed on the diplomatic scene. With his insensitive remarks on the assets of Holocaust victims, he has thrown Swiss foreign policy into turmoil – and not for the first time. Early on Friday morning the temperature began to rise in the offices of the Swiss embassy in Washington. ‘We do not comment on internal documents’ said an embassy spokesman emphatically to this newspaper ... By the following day, nevertheless, ... [an] editor on the [daily newspaper] Neue Zürcher Zeitung had already leapt to the defence of his close friend Carlo Jagmetti. Under the heading ‘Leaks continue unabated’, he announced that ‘this balanced document, some parts of which might, of course, be mischievously construed, may be published this weekend’. Damage limitation, therefore, was the name of the game in Washington on Friday. Ambassador Carlo Jagmetti, who has represented <COUNTRY> abroad for 34 years, was clearly aware of the explosive nature of his strategy paper, dated 19 December 1996, on the subject of unclaimed Jewish assets. In his paper, he talks about a ‘war <COUNTRY> must wage and win on the external and domestic fronts’. He winds up with a flourish by observing: ‘Most of our adversaries are not to be trusted.’ The Swiss embassy in Washington is, however, experienced in crisis management. Carlo Jagmetti, who heads the embassy, regularly puts his foot in it. In 1993, a few months after moving into his office in the prestigious Cathedral Avenue, this senior diplomat committed his first faux pas . In an interview with the magazine Schweizer Illustrierte , he complained about the American administration, saying ‘I’ve observed a certain lack of courtesy’. Even Bill Clinton, who was said to ‘burst out laughing sometimes at inopportune moments’, was criticised during the interview. Apparently, Mr Clinton had ‘kept [Carlo Jagmetti] waiting for four months’ before he was accredited. And, according to the ambassador, it was legitimate to ask, on a general note, ‘who [was] actually governing the <COUNTRY>’. Berne reprimanded the ambassador for his ill-chosen remarks and for an unconventional public appearance (Carlo Jagmetti and his wife were pictured [in an article in Schweizer Illustrierte ] in their bathrobes), but the ambassador did not prove much more reticent in his subsequent utterances. And in the highly topical debate concerning the assets of Holocaust victims, Carlo Jagmetti has also given the impression of somebody blundering onto the diplomatic stage in outsize boots. He rebuked the Holocaust survivor Gerda Beer in front of the assembled American press, saying that her claims were unfounded as her uncle had emptied the Swiss bank account in question. The incident-prone diplomat based his remarks, however, not on proven facts, but on unsubstantiated rumours which had been circulating. Berne was left with no choice but to apologise for his undiplomatic remarks in a bid to limit the damage. These remarks, which have now been made public, are all the more embarrassing since the tension seemed to be easing. Only last Friday Senator D’Amato and the World Jewish Congress had for the first time welcomed <COUNTRY>’s agreement to set up a fund for Holocaust victims. Swiss diplomats are now engaged in behind-the-scenes efforts to head off the impending crisis by stressing the fact that Carlo Jagmetti is due to retire shortly. In any event, they argue, Mr Jagmetti played only a minor role in the recently concluded negotiations between Jewish organisations and the American Senator D’Amato. Carlo Jagmetti himself has declined to comment. He absented himself from the major press conference held by Senator D’Amato on Friday before the world’s press. He was reportedly on holiday in Florida.” Other press articles A third article, which also appeared in the Sonntags-Zeitung on 26 January 1997 and was written by the editor Ueli Haldimann, was entitled “The ambassador with a bunker mentality” (“ Botschafter mit Bunkermentalität ”). On Monday 27 January 1997 the Zürich daily, the Tages-Anzeiger , reproduced lengthy extracts from the strategy paper in an article entitled “That’s all we need” (“ Das hat gerade noch gefehlt ”). Subsequently, another newspaper, the Nouveau Quotidien , also published extracts from the paper. The opinion of the Swiss Press Council Following publication of these articles, the Swiss Federal Council ( Bundesrat ) requested the Swiss Press Council ( Presserat ) to examine the case. The Swiss Press Council acts as a complaints body for media-related issues. It is an institution under Swiss private law set up by four associations of journalists which formed a foundation ( Stiftung ) to organise and fund the activities of the Press Council. According to the Press Council rules, its activities are intended to contribute to the discussion of fundamental ethical issues in relation to the media. Its task is to uphold freedom of the press and freedom of information, and it adopts opinions, on its own initiative or in response to complaints, on issues concerning journalistic ethics. The Swiss Press Council has adopted a “Declaration on the rights and responsibilities of journalists”, which is available on the Internet. Its opinion ( Stellungnahme ) of 4 March 1997 concerning the present case (no. 1/97, J./ Sonntags-Zeitung ) reads as follows (unofficial translation): “Considerations ... With regard to the publishing of confidential information, the following extracts from the Declaration on the rights and responsibilities of journalists are of relevance: (a) ’[Journalists’] responsibility to the public [shall take precedence over] their responsibility ... towards the ... authorities ... in particular’ (Preamble). (b) Journalists shall have free access ‘to all sources of information and [shall have the] right to investigate without hindrance any facts which are in the public interest; objections of secrecy in public or private matters may be raised only in exceptional cases, with sufficient reasons given in each case’ (point (a) of the Declaration of rights). (c) Journalists shall publish only ‘such information, documents [or] images whose origin is known to them; [they shall not suppress] information or essential elements [and shall not] distort any text, document, image ... or opinion expressed by another. [They shall] present unsubstantiated news items very clearly as such [and] make clear when pictures have been edited’. They shall comply with reasonable deadlines (point 3 of the Declaration of responsibilities). (d) Journalists shall not make use of ‘unfair methods in order to obtain information, ... images or documents’ (point 4 of the Declaration of responsibilities). (e) They shall respect ‘editorial secrecy and shall not reveal the sources of information obtained in confidence’ (point 6 of the Declaration of responsibilities). (f) They shall not accept ‘any favours or promises which might compromise their professional independence or their ability to express their own opinions’ (point 9 of the Declaration of responsibilities). ... It must first be established whether diplomats’ reports come under the heading of vital interests. The federal authorities and those who share their point of view argue that these reports are highly sensitive and comparable to the negotiations conducted by the Federal Council and the reports preceding such negotiations. These documents, they argue, merit greater protection than, for instance, expert reports or minutes of parliamentary committees. The Federal Department of Foreign Affairs and the Federal Council cannot form an accurate picture of international relations unless the ambassadors provide them with additional information, different from and more sensitive than that provided by the media. Diplomats also provide information they have obtained from confidential sources, behind the scenes or off the record. They need, for instance, to be able to express in plain language their views about violations of human rights and political relations in Iran, the involvement of leading Colombian politicians in drug trafficking and the true picture with regard to the balance of power and intrigue in the Kremlin. If, despite everything, reports of this kind are published, the ambassador concerned will almost automatically be declared persona non grata in the host country. If reports of this kind were to be published on a regular basis, ambassadors would no longer be able to report on everything that was going on. That would have an adverse impact on Swiss foreign policy, perhaps even paralysing it completely. And if everything were to be made public, <COUNTRY> might just as well recall its diplomats and replace them with the media. In exercising their function as critic and watchdog, the media must always remain mindful of their responsibilities. This applies with particular force in the sphere of foreign policy, as the reports relating to foreign policy are also read abroad. If only for this reason, they are more sensitive than reports on domestic policy matters. ... The Press Council acknowledges the importance of the principle that diplomatic correspondence should remain confidential. In the past, the Swiss media have observed that principle in substance and have not set out to expose the internal workings of diplomacy to public view. Disclosures in the foreign policy sphere have been the exception rather than the rule in <COUNTRY>. Media bosses are clearly aware of the responsibilities inherent in the media’s role as critic and watchdog in this sphere. At the same time, it should not be forgotten that disclosures by the media in the field of foreign policy are commonplace in other countries, particularly in the <COUNTRY>, but also in the <COUNTRY> and <COUNTRY>. Clearly, other governments and diplomats have long had to contend with this risk of disclosures concerning foreign policy, and have learned to live with it. Whether they like it or not, the Swiss authorities must also learn to adjust to a situation in which foreign policy is as much the focus of media attention as domestic policy, and in which revelations may come not just from the Swiss media but also from foreign media. An approach which places confidentiality before the public interest in too rigid a manner is neither realistic nor legitimate, particularly since diplomatic reports are regularly forwarded to a large number of authorities. There can be no doubt that the revelations in the Sonntags-Zeitung and the Tages ‑ Anzeiger were a source of embarrassment and problems for those responsible for Swiss foreign policy, but they did not restrict their room for manoeuvre substantially. Diplomatic reports are confidential by right, but when the conditions that allow confidential reports to be published are met, freedom of the press must take precedence (Opinion 2/94, Moser/Reimann parliamentary questions). The Press Council must now examine whether the content of Mr Jagmetti’s strategy paper is of such importance that it was appropriate to invoke the public interest, and whether it should have been published. In the view of Ueli Haldimann, editor of the Sonntags-Zeitung , the public interest lay in the fact that it was important to let people know how the Swiss ambassador in Washington perceived the complex issue of Holocaust victims’ assets and the way <COUNTRY> was coming to terms with its past, and what kind of aggressive language he used. According to Haldimann, his newspaper did not publish any leaked information unless the public interest was at stake. Although there were more leaks now than previously, they were not damaging in principle, and were often the only remaining means of putting a stop to harmful conduct ... From the Press Council’s standpoint, the next step is to assess the strategic importance of Mr Jagmetti’s paper. Mr Jagmetti set out in this document to make a perfectly reasonable analysis of the situation, making a number of constructive proposals. He explored two ‘extreme’ options – the first involving some kind of ‘deal’ and the second involving a ‘legal strategy’. The paper testifies to a fundamental concern to get at the truth, to find a generous financial solution and to protect Swiss interests and the country’s good relations with the <COUNTRY>. However, it could not escape the attention of even the most casual reader that Mr Jagmetti used very bellicose language and that he regarded his negotiating partners as adversaries who were not to be trusted and who might be amenable to some kind of deal. The language used betrays attitudes which are problematic even in an internal document, since attitudes are liable to be reflected also in negotiations and informal contacts. In that connection, Mr Jagmetti was to have been engaged in important discussions concerning the assets of Holocaust victims during the last six months of his tenure. The Press Council is mindful of the fact that the degree of public interest of confidential information cannot be determined in a wholly objective manner, but depends on the ideological, cultural, economic and advertising context in which the medium operates. Nevertheless, in the case of Mr Jagmetti’s strategy paper, the public interest was clear, as the debate surrounding the assets of Holocaust victims and <COUNTRY>’s role in the Second World War was highly topical in late 1996 and early 1997 and had an international dimension, and because the Swiss ambassador in Washington was to occupy a prominent position in the forthcoming discussions. Knowing what that ambassador thought and how he formulated his opinions was relevant, and not a trivial concern. Leaving aside the question of the public interest and the relevance of the ambassador’s remarks, the publication of this supposedly confidential paper was justified from an ethical viewpoint, since only as a result of its publication did it become clear that those in charge still had no clear idea, despite the creation of the task force, as to the question of Swiss responsibility and what steps should be taken. From the perspective of political transparency, publication of the confidential paper, despite the fact that it was more than a month old and that in the meantime there had been talk of setting up a fund for Holocaust victims, might have spurred the government on to engage in debate in order to overcome the problems, demonstrate leadership and devise convincing solutions. Finally, it is necessary to assess whether the information was made public in the most appropriate form. According to one school of thought, the media are in a position of power, since not only do they inform, they also suggest by the way in which they present the information how it is to be assessed. In the present case the Sonntags-Zeitung , it is argued, presented an internal analysis of foreign policy in truncated form and, by publishing it alongside comments from third parties who had not seen the original text, planted in people’s minds the idea that Ambassador Jagmetti had ‘insulted the Jews’. The newspaper, by accusing Mr Jagmetti of anti ‑ Semitism, started a rumour in an irresponsible manner. Reproducing the full text would not have placed Mr Jagmetti under the same kind of pressure and would not have forced him to resign. The manner in which the information was published, therefore, was a source of problems and consternation. The opposing school of thought argues that it is vital to analyse the salient points of Mr Jagmetti’s remarks. According to the Sonntags-Zeitung , there was no question of accusing Ambassador Jagmetti of anti-Semitism. Nevertheless, the newspaper’s editors have acknowledged off the record that it would have been wiser to publish the strategy paper in full. They maintain that, on the day of publication, it would have been virtually impossible to add another page to the newspaper and that plans to publish the full text on the Internet were abandoned owing to technical problems. The Press Council regards these arguments as spurious, and agrees with the criticism regarding the manner of publication. The Sonntags-Zeitung did not make sufficiently clear that Ambassador Jagmetti had outlined several options in his strategy paper, of which the ‘deal’ was just one. Nor did it make the timing of the events sufficiently clear, particularly since the document was already five weeks old and had reached the addressees before the interview given by the outgoing Swiss President on the programme 24 heures/Tribune de Genève . The newspaper unnecessarily made the affair appear shocking and scandalous and, by its use of the headline ‘Ambassador Jagmetti insults the Jews’, misled the reader and made it appear that the remarks had been made the previous day. It was incorrect to assert that Mr Jagmetti’s letter undermined the process which had begun in January, particularly since the document had been circulated beforehand and had not previously been in the public domain, and could not therefore adversely affect the talks with the country’s partners at home and abroad. When the Sonntags-Zeitung attempted to contact Mr Jagmetti on Friday 24 January in order to obtain a comment, and failed to reach him because he was in Florida, the newspaper’s editors should have considered whether it might not be wiser to delay publication by a week so as to be able to publish an interview with Carlo Jagmetti alongside the extracts from his paper. The fact that publication went ahead in the next issue in spite of everything can only have been prompted by the fear of competition, which on no account constitutes sufficient justification for immediate publication. Hence, by publishing the strategy paper in the way it did, the Sonntags-Zeitung omitted vital pieces of information, in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities). ... Findings Freedom of the press is too fundamental a right to be made subservient as a matter of principle to the interests of the State. The role of critic and watchdog played by the media requires them to make information public where the public interest is at stake, whether the source of information is freely accessible or confidential. As to the publication of confidential information, the pros and cons must be weighed up carefully, with an eye to whether interests which merit protection are liable to be damaged in the process. Internal reports by diplomats are confidential by right, but do not necessarily merit a high degree of protection in all cases. The media’s role as critic and watchdog also extends to foreign policy, with the result that those in charge in the media may publish a diplomatic report if they consider its content to be in the public interest. In the case of Mr Jagmetti, the interest to the public of his strategy paper should be acknowledged, as should the fact that its publication was legitimate on account of the importance of the public debate on the assets of Holocaust victims, the prominent position occupied by the Swiss ambassador in Washington and the content of the document. In this case the Sonntags-Zeitung , in irresponsible fashion, made Mr Jagmetti’s views appear shocking and scandalous by printing the strategy paper in truncated form and failing to make the timing of the events sufficiently clear. The newspaper therefore acted in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities). The Tages-Anzeiger and the Nouveau Quotidien , on the other hand, placed the affair in its proper context following the revelations by reproducing the document in its near ‑ entirety.” E. The criminal proceedings against the applicant Proceedings at cantonal level Following publication of the articles, the applicant was made the subject of an investigation by the Zürich cantonal authorities. By a decision of 6 March 1998, the Federal Public Prosecutor’s Office ordered the discontinuation of the investigation into a breach of official secrecy ( Verletzung des Amtsgeheimnisses ) within the meaning of Article 320 of the Swiss Criminal Code. It remitted the case in respect of the charge of publication of official deliberations within the meaning of Article 293 of the Criminal Code to the prosecuting authorities of the Canton of Zürich. On 5 November 1998 the Zürich District Office ( Statthalteramt des Bezirkes Zürich ) fined the applicant 4,000 Swiss francs (CHF) (approximately 2,382 euros (EUR) at the current exchange rate) for contravening Article 293 § 1 of the Swiss Criminal Code (see paragraph 35 below) by publishing the articles entitled “Ambassador Jagmetti insults the Jews” and “The ambassador in bathrobe and climbing boots puts his foot in it”. On 22 January 1999, following an application by the applicant to have the decision set aside, the Zürich District Court ( Bezirksgericht ) convicted him of an offence under Article 293 § 1 of the Swiss Criminal Code, but reduced the fine to CHF 800 (approximately EUR 476 at the current exchange rate). The relevant passages of the District Court judgment read as follows (unofficial translation): “2 According to the case-law of the Federal Court, the offence defined in Article 293 of the Criminal Code is based on a formal notion of secrecy whereby the confidential nature of a document, a set of talks or an investigation stems not from its content but from it being classified as such by the competent body. In accordance with this approach by the Federal Court, the strategy paper in question, which was marked ‘(classified) confidential’ (Document 2/2), amounts to a secret in the formal sense, and as such attracts the protection of Article 293 of the Criminal Code. When it comes to interpreting Article 293 of the Criminal Code, freedom of expression and freedom of the press (Article 10 of the European Convention on Human Rights and Article 55 of the Federal Constitution) should in principle be taken into consideration in the appellant’s favour. With the revision of the Criminal Code of 10 October 1997, which made the publication of secrets of minor importance an extenuating circumstance (Article 293 § 3), the legislature added a substantive component to the notion of secrecy under Article 293. But even assuming that for these reasons – and contrary to the case-law of the Federal Court – the court were to base its decision on a purely substantive notion of secrecy, the outcome would not be favourable to the appellant. The views expressed by Ambassador Jagmetti in the strategy paper were not in the public domain. This, moreover, is also apparent from the fact that the information conveyed and the way it was analysed provided the basis for ‘sensationalist’ articles by the appellant. Whether or not Ambassador Jagmetti might have been willing to divulge the content of the strategy paper in an interview is of little relevance here. However, there is every reason to doubt it, the more so given the limited number of persons to whom the document was sent. Furthermore, contrary to the appellant’s claims, the content of the strategy paper was far from unremarkable. The document contained an assessment of the delicate foreign policy situation in which <COUNTRY> found itself in December 1997 on account of the unclaimed assets, in particular vis ‑ à ‑ vis the <COUNTRY>. It also proposed a variety of strategies aimed at helping the country get out of its predicament. Documents setting out often carefully worded evaluations and assessments are an essential part of the formation of opinions and decision-making at embassy level, a process during which strongly held and often diverging opinions are exchanged and discussed internally until agreement is reached on a particular position. The protection which Article 293 of the Criminal Code is intended to provide also applies to the formation of opinions in as free a manner as possible and without undue outside influence (BGE (Federal Court Reports) 107 IV 188). In that regard, the document in question was aimed at helping the head of the task force to form an opinion and hence at influencing the course of events and the country’s handling of the issue of the unclaimed assets. By its very nature, the publication of internal documents of this kind, which are designed to help form opinions, can have devastating consequences for the negotiations to be conducted. Consequently, given its explosive content and the fact that it was unknown to the public, the document in question was also secret in the substantive sense. It is thus fair to say that the question whether the broad formal notion of secrecy adopted by the Federal Court takes precedence over Article 10 of the European Convention on Human Rights remains open ... To justify his actions, the appellant claims to have been defending legitimate interests. According to the Federal Court, this extra-legal justification may be relied on ‘if the act in question constitutes a necessary and reasonable means of achieving a legitimate aim, is the sole possible course of action and is manifestly of less importance than the interests which the perpetrator is seeking to defend’ (BGE 120 IV 213). The appellant argues that the editors of the Sonntags-Zeitung assessed the situation before arriving at the conclusion that the public interest carried greater weight. They took the view that the public was entitled to be informed when leading diplomats used language which was in glaring contradiction with <COUNTRY>’s official position (Document 2/5, p. 2). The tone employed by the ambassador was so inappropriate, they argued, that publication was necessary (Document 2/7). Ambassador Jagmetti, according to the editors, was not the right person to be conducting the negotiations with Senator D’Amato and the Jewish organisations, as he lacked the finesse needed to deal with this important issue (Document 17, p. 13). By publishing the confidential strategy paper, therefore, the appellant was in part attempting, as it were, to sideline from the negotiations a leading diplomat whose style he disliked. It must be said that, even if it was genuine, the indignation expressed by the appellant with regard to the tone of the document seems somewhat naïve. While a section of the public may well have wished to be informed about internal documents of this kind, this has little to do with legitimate interests. Moreover, the appellant undoubtedly undermined the climate of discretion which is of vital importance in the sphere of diplomatic relations, thereby weakening <COUNTRY>’s position in the negotiations or at least compromising it substantially. In assessing the public interest relied on by the appellant in the light of the strict requirements laid down by the Federal Court with regard to the extra-legal justification of defence of legitimate interests, it is clear, firstly, that the means employed by the Sonntags ‑ Zeitung , consisting in the impugned publication of secret official documents, were neither necessary nor reasonable and, secondly, that the interests which were damaged as a result were not ‘manifestly’ of less importance. In addition, the public debate on unclaimed assets which the appellant wished to see could perfectly well have been conducted without infringing Article 293 of the Criminal Code. The defence of legitimate interests cannot therefore be relied on as justification ... Under Article 293 § 3 of the Criminal Code, the publication of secrets of minor importance amounts to an extenuating circumstance. As indicated above, however, the secret divulged in the present case was not of minor importance. The publishing of a strategy paper which was vital to the formation of opinions within the Federal Department of Foreign Affairs and the Federal Council, while it may not have actually weakened <COUNTRY>’s position vis-à-vis the outside world and in particular in the negotiations, at least temporarily compromised it. It was important to preserve the confidentiality of the document not just because it was classified as ‘confidential’. The implications of the subject under discussion for Swiss foreign policy also called for greater discretion in dealing with the strategy paper. There are therefore no extenuating circumstances under Article 293 § 3 of the Criminal Code in relation to the facts constituting the offence. ... The offence committed cannot now be regarded as minor, as the secrets which the appellant made public are not of secondary importance. In publishing the strategy paper, the appellant unthinkingly compromised <COUNTRY>’s tactical stance in the negotiations. Nevertheless, the offence is not a very serious one, as the appellant did not divulge an actual State secret whose publication could have undermined the country’s very foundations. Nor should too much be made of the fault committed by the appellant, in so far as he committed his actions – with the backing of the newspaper’s editor and its legal department – in a legitimate attempt, among other things, to start an open debate on all aspects of the unclaimed assets issue. A fine of CHF 800 is therefore appropriate ...” The applicant lodged an appeal on grounds of nullity ( Nichtigkeitsbeschwerde ), which was dismissed by the Court of Appeal ( Obergericht ) of the Canton of Zürich on 25 May 2000. Proceedings at federal level The applicant lodged an appeal on grounds of nullity and a public ‑ law appeal ( staatsrechtliche Beschwerde ) with the Federal Court ( Bundesgericht ). He argued that a journalist could be convicted of an offence under Article 293 of the Swiss Criminal Code only in exceptional circumstances, namely if the secret published was of unusual importance and publishing it undermined the country’s very foundations. He referred to the public interest in being made aware of the ambassador’s remarks and the role of journalists as watchdogs in a democratic society. The Federal Court dismissed the applicant’s appeals in two judgments dated 5 December 2000 (served on 9 January 2001) in which it upheld the decisions of the lower courts. In examining the appeal on grounds of nullity, the Federal Court firstly outlined some considerations regarding Article 293 of the Criminal Code (unofficial translation): “(a) According to the case-law and most commentators, Article 293 of the Criminal Code is aimed at protecting secrets in the formal sense. The sole determining factor is whether the documents, investigations or deliberations are secret by virtue either of the law or of a decision taken by the authority concerned. Whether they have been classified as ‘secret’ or simply ‘confidential’ is of little relevance; it is sufficient for it to be clear that the classification was designed to prevent their publication ... This formal notion of secrecy differs from the substantive notion, to which most of the Articles of the Criminal Code on the disclosure of secret information relate, for instance Article 267 (diplomatic treason) or Article 320 (breach of official secrecy). In the substantive sense, a fact is secret if it is accessible to only a limited number of persons, if the authority in question wishes to keep it secret and if that wish is justified by interests which merit protection ... Many commentators have argued in favour of the wholesale repeal of Article 293, saying that steps should at least be taken to ensure that publication of a secret in the substantive sense is punishable only if the secret is of major importance ... (b) As part of the revision of the criminal and procedural provisions relating to the media, the Federal Council proposed repealing Article 293 of the Criminal Code without replacing it with another provision. In its communication (BBl (Federal Gazette) 1996 IV 525 et seq.), the Federal Council argued in particular that it was unfair to punish the journalist who had published the confidential information, while the official or representative of the authority concerned who had originally made publication possible generally escaped punishment because his or her identity could not be established ... According to the Federal Council, Article 293 of the Criminal Code, which protected secrets in the formal sense ..., placed excessive restrictions on the freedom of action of the media. In its view, the ‘second use’ of a disclosed secret (by someone working in the media, for instance) was less serious in terms of criminal potential and unlawfulness than the initial disclosure of the secret by its holder. In addition, the journalist was by no means always aware that the information he had received was obtained as the result of betrayal of a secret. The actions of the ‘second user’ might be assessed differently in cases where the information disclosed was a genuine State or military secret. However, independently of Article 293 of the Criminal Code, the legislation in force in any case made provision, in relation to diplomatic treason (Article 267 of the Criminal Code) and breach of military secrecy (Article 329 of the Criminal Code), for two layers of protection in such cases, one against disclosure by the holder of the secret and the other against disclosure by the ‘second user’. According to the Federal Council, the proposed repeal of Article 293 of the Criminal Code would not therefore undermine the protection of secrecy under criminal law in important spheres. The objection that Article 293 also protected individual interests was at best indirectly relevant, as individuals’ private and personal lives were protected first and foremost by Articles 179-79 septies of the Criminal Code and the provisions of the Civil Code concerning the protection of personality rights ... In the federal authorities, those in favour of the wholesale repeal of Article 293 of the Criminal Code have also argued that the provision in question is rarely applied and is not effective. They contend that it is unfair, in particular, because it penalises only the journalist, who is the ‘second user’, whereas the identity of the initial perpetrator of the offence, namely the official or representative of the authority concerned, remains unknown ... and he or she cannot therefore be called to account for a breach of official secrecy, for instance. Even if Article 293 were simply repealed, they argue, the disclosure by a journalist of genuinely important secrets would still be punishable, for instance under Article 267 of the Criminal Code (diplomatic treason) or Article 329 (breach of military secrecy). Opponents of the repeal of Article 293 have argued ... that the provision is more necessary than ever, as the disclosure of secret or confidential information can have serious consequences ...” The Federal Court then turned to the circumstances of the present case: “The ‘publication of secret official deliberations’ (offence referred to in Article 293 of the Criminal Code) must still be considered to be based on a formal notion of secrecy, in line with the case-law of the Federal Court. The addition of a third paragraph to Article 293 has done nothing to change that. However, in view of the fact that it is now open to the criminal courts not to impose any penalty, they must determine in advance whether the classification as ‘secret’ can be justified in the light of the purpose and content of the disclosed documents. That is the case here. The extracts from the confidential document published by the appellant were, moreover, also secret in the substantive sense. The appellant rightly refrains from arguing that the extracts in question were of minor importance within the meaning of Article 293 § 3 of the Criminal Code. In requesting that the application of Article 293 be confined to cases in which the secrets disclosed are of major importance and their disclosure threatens the very foundations of the State, the appellant is seeking a decision which goes well beyond any interpretation of Article 293 (in line with the Constitution and the case-law of the European Court of Human Rights), which the Federal Court is obliged to apply pursuant to Article 191 of the new Federal Constitution. The same is true of the argument that persons working in the media can be convicted of publishing secret official deliberations under Article 293 of the Criminal Code only if the interest of the State in preserving the confidentiality of the disclosed information outweighs the public interest in receiving the information. This comparison of the interests at stake has no bearing on the essential elements of the offence, although it may possibly have a bearing on the extra-legal justification of protection of legitimate interests. In any event, the circumstances of the present case are not such as to allow the protection of legitimate interests to be relied on as justification for publishing secret official deliberations. This conclusion renders a comparison of the interests at stake in the present case redundant. It is therefore not necessary to respond to the appellant’s criticism of the way in which the cantonal authorities balanced those interests. For the sake of completeness, however, it should nevertheless be pointed out that, for the reasons set forth by the federal authorities, the interest in maintaining the confidentiality of the strategy paper in question carried greater weight than the public interest in being apprised of the extracts published in the newspaper. In order to avoid repetition, the court would refer here to the considerations set forth in the impugned judgment and in the first-instance judgment. It was in the interests not only of the ambassador and the Federal Council, but also of the country, to preserve the confidential nature of the strategy paper. The publication of isolated extracts was liable to interfere with the formation of opinions and the decision-making process within the State bodies in <COUNTRY>, and above all to further complicate the already difficult negotiations being conducted at international level; this was not in the country’s interest. On the other hand, the passing interest in the extracts published out of context in the newspaper which the eye-catching headline aroused among sensation-seeking members of the public is relatively insignificant in legal terms. This is all the more true since the ‘tone’ criticised by the appellant, used in an internal document written in a specific context (and the content of which was, according to the article, an unremarkable assessment of the situation), did not in any event permit the reader to draw clear and indisputable conclusions as to the ‘mentality’ of the ambassador, still less as to his ability to perform the task assigned to him ...” In its judgment following the applicant’s public-law appeal, the Federal Court found as follows (unofficial translation): “In his public-law appeal, the appellant requests in particular that the principle of equality in the breach of the law [ Gleichbehandlung im Unrecht ] be applied to him and raises, among other things, a complaint concerning a violation of the principle of lawfulness ... (b) There is no need to explore in detail here the reasons why the prosecuting authorities decided not to prosecute the other journalists mentioned by the appellant for publication of secret official deliberations on account of the articles which they wrote, or to consider whether those reasons were sufficient. Even if the latter question were to be answered in the negative, it would not benefit the appellant in any way. It is clear from the explanations on this point set forth in the impugned judgment (pp. 5 et seq., Considerations point 4) and in the first-instance judgment (p. 3, Considerations point 4) that the exceptional circumstances in which the Federal Court’s case-law recognises the right to equality in the breach of the law do not apply. The approach taken by the prosecuting authorities in this case does not in itself constitute a ‘consistent’ (possibly unlawful) practice, either in the sense that, in the absence of specific substantive grounds, journalists are only very exceptionally prosecuted for publication of secret official deliberations, not systematically, or in the sense that, where extracts from the same confidential document are published by several journalists in different articles, the journalist who for whatever reason – whether on the basis of the way the article was written or of the extracts selected – appears to be the most culpable is consistently singled out for prosecution. Moreover, there is nothing to suggest that either (possibly unlawful) practice will be adopted in the future ...”

United States, Switzerland, Germany, Israel, United Kingdom

P1-1

The applicants complained under Article 1 of Protocol No. 1 to the Convention of the blanket ban on alienation of agricultural land.

Particular circumstances of the case A. Background to litigation Between 1983 and 1987 a number of incidents gave rise to concern over the adequacy of the applicant company's security procedures at Heathrow Airport, London: (1) Between November 1983 and September 1984 a series of consignments, believed by Customs and Excise to have contained drugs, disappeared from the Air <COUNTRY> transit shed. (2) In March 1986 809 kilograms of cannabis resin were discovered in a consignment from <COUNTRY> (New Delhi). (3) In May 1986 a consignment from <COUNTRY> which had been taken out of the controlled area, was intercepted and found to contain 300 kilograms of cannabis resin. Two Air <COUNTRY> staff were subsequently convicted of offences connected to the importation of cannabis resin. (4) On 11 June 1986 Customs and Excise wrote to the applicant company's Cargo Terminal Manager expressing concern about the large quantities of drugs being smuggled into the country with the assistance of Air <COUNTRY> staff. In its reply Air <COUNTRY> promised to improve its security. (5) On 15 December 1986 Customs and Excise wrote to all airline operators at Heathrow and Gatwick warning them about the possible penalties if illegal imports were discovered aboard their aircraft. The letter stated, inter alia, that where an aircraft was used for the carriage of anything liable to forfeiture the Commissioners "will consider exercising their powers under the law, including the seizure and forfeiture of aircraft or the imposition of monetary penalties in lieu of such forfeiture". (6) On 31 December 1986 Customs and Excise wrote again to the applicant company informing it that £2,000 would be deducted from Air <COUNTRY>'s bond pursuant to section 152 of the Customs and Excise Management Act 1979 ("the 1979 Act") for earlier breaches of security. (7) Between November 1986 and January 1987 another consignment was removed from the Air <COUNTRY> transit shed without proper authority and the applicant company failed to inform Customs and Excise for a considerable time. It was decided to deduct £5,000 from Air <COUNTRY>'s bond. B. Discovery of consignment of cannabis resin On 26 April 1987 a Tristar aircraft owned and operated by the applicant company and worth over £60 million, landed at Heathrow Airport, London, where it discharged cargo including a container which, when opened, was found to contain 331 kilograms of cannabis resin valued at about £800,000. The airway bill number of the container was false, the applicant company's cargo computer did not hold any details of the consignment and no airway bill had been drawn up and despatched for it. The aircraft was on a regular scheduled flight starting in <COUNTRY> and travelling to Toronto landing en route at Bombay and Heathrow. It was carrying both fare-paying passengers and cargo. Action of the Customs and Excise Commissioners On the morning of 1 May 1987 officers of the Commissioners of Customs and Excise ("the Commissioners") acting under powers conferred by section 139 (1) of the 1979 Act seized the aircraft as liable to forfeiture under section 141 (1) of the same Act. Passengers were waiting to board the aircraft. On the same day the Commissioners, acting under powers contained in section 139 (5) and paragraph 16 of Schedule 3 to the 1979 Act, delivered the aircraft back to the applicant company on payment of a penalty, namely a bankers' draft for £50,000. No reasons were given to the applicant company at the time for the decision either to seize the aircraft or to levy the penalty. It was only during the course of proceedings before the European Commission of Human Rights that the Government offered the earlier security problems (see paragraph 6 above) as an explanation for the actions of the Commissioners. Proceedings before the High Court On 20 May 1987 the applicant company gave notice of a claim disputing that the aircraft was liable to forfeiture. The Commissioners therefore brought condemnation proceedings before the court to confirm, inter alia, that the aircraft was liable to forfeiture at the time of seizure in accordance with paragraph 6 of Schedule 3 (see paragraph 18 below). On 18 June 1988 an order was made by a Master of the High Court with the consent of the parties that the preliminary issues to be decided were as follows: "(1) Whether the facts that (a) cannabis resin was found in container ULD6075AC; and (b) that container had been carried by aircraft on Flight AC859 on 26 April 1987, alone constitute 'use of the aircraft for the carriage of a thing liable to forfeiture' within the meaning of section 141 (1) (a) of the Customs and Excise Management Act 1979, such as to justify its subsequent seizure on 1 May 1987; (2) Whether it is a defence to the Plaintiffs' [the Commissioners] claim in this action if the Defendants establish that they did not know that the aforesaid container contained cannabis resin and were not reckless in failing so to discover; (3) Whether it is a defence to the Plaintiffs' claim in this action if the Defendants establish that they could not with reasonable diligence have discovered that cannabis had been secreted and hidden or was being carried in the container, nor could they by the exercise of reasonable diligence have prevented its being secreted and hidden in the container; (4) Whether it is necessary for the Plaintiffs to prove in this action: (i) that the Defendants knew or ought to have known that cannabis resin was on board the aircraft on 26 April 1987; and/or (ii) that the aircraft was on other than a regular scheduled and legitimate flight." On 7 November 1988 giving judgment in the High Court ([1989] 2 Weekly Law Reports 589), Mr Justice Tucker concluded: "I cannot think that the draughtsman of the 1979 Act had the present situation in mind. I cannot believe that it was the intention of Parliament that the innocent and bona fide operator of an extremely valuable aircraft on an international scheduled flight should be at risk of having the aircraft forfeited if, unknown to him and without any recklessness on his part, some evil-minded person smuggles contraband or prohibited goods aboard the aircraft." He answered the preliminary questions as follows: "No. Those facts alone do not constitute 'use of the aircraft for the carriage of a thing liable to forfeiture'. Yes. It is a defence. Yes. It is a defence. It is necessary for the Plaintiffs to prove in this action: (i) that the defendants knew or ought to have known that cannabis resin was on board the aircraft on 26 April 1987; or (but not and) (ii) that the aircraft was on other than a regular scheduled and legitimate flight." E. Proceedings before the Court of Appeal On 14 June 1990 the Court of Appeal overruled the decision of the High Court (Customs and Excise Commissioners Air <COUNTRY>, [1991] 2 Queen's Bench Division 446). Lord Justice Purchas stated as follows (at pp. 467-68): "The wording of section 141 is, in my view, clear and unambiguous and does not permit of any implication or construction so as to import an element equivalent to mens rea [criminal intent] nor does it involve in any way any person in the widest sense whether as user, proprietor or owner but depends solely on 'the thing' being used in the commission of the offence which rendered the goods liable to forfeiture ... In my judgment the mitigating provisions included in section 152 and paragraph 16 of Schedule 3, indicate clearly that Parliament intended to trust to the Commissioners the exercise of these matters of discretion. Apart from this the exercise of this discretion will be readily open to review by the court under R.S.Order 53 ... I would only comment that there may well be a case to exclude inter-continental or large passenger jet aircrafts flying on scheduled flights from section 141 (1) in the same way as vessels over a certain size have been excluded and to provide for them in section 142 ..." The preliminary questions were answered as follows: Yes No No No Although the Court of Appeal condemned the aircraft as forfeited this did not have the effect of depriving Air <COUNTRY> of ownership since it had paid the sum required for the return of the aircraft (see Schedule 3, paragraph 7 at paragraph 19 in fine below). In the course of his judgment Lord Justice Purchas added (at pp. 464 and 467): "Mr Webb, for Air <COUNTRY>, relying upon the above authorities, made the following submissions ... that in effect if not in form section 141 was a criminal provision under which severe penalties could in practice be inflicted upon the owner or proprietor of vessels, particularly large aircraft and that, therefore, under the authorities just cited there should be implied in the terms of that section a requirement that the Commissioners must establish in their condemnation proceedings knowledge of some sort in the airline by their servants or agents so as to comply with the presumption of mens rea in criminal provisions. ... In my judgment, the answer to this submission which demonstrates its fallacy is that the process which is invoked as a result of sections 141 (1), 139 and Schedule 3 is by description a civil process. This of itself would not, if all other matters militated to the contrary, prevent it from being in its nature a criminal provision. Mere words would not necessarily be conclusive although the procedure in the civil courts outlined in Schedule 3 must carry considerable weight. The matter is, however, put beyond argument by the earlier cases ... [which decide that] section 141 and its predecessor sections in the 1952 Act and the 1876 Act provided a process in rem against any vehicle, container or similar article which was in fact used in the process of smuggling ..." In their judgments, Lord Justice Balcombe and Sir David Croom-Johnson agreed that section 141 (1) did not create a criminal offence (at pp. 468 and 469). Leave to appeal to the House of Lords was refused by the Court of Appeal on that occasion and on 7 November 1990 by the House of Lords. Relevant domestic law and practice A. Customs and Excise Management Act 1979 Liability to forfeiture Section 141 (1) "... where any thing has become liable to forfeiture under the Customs and Excise Acts - (a) any ship, aircraft, vehicle, animal, container (including any article of passengers' baggage) or other thing whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purpose of the commission of the offence for which it later became so liable; ... shall also be liable to forfeiture." Schedule 3, paragraph 6 "Where notice of claim in respect of any thing is duly given in accordance with [paragraphs 3 and 4 above] the Commissioners shall take proceedings for the condemnation of that thing by the court, and if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited." Powers of Commissioners after seizure Section 139 (5) "Subject to subsections (3) and (4) and to Schedule 3 to [the] Act any thing seized or detained under the Customs and Excise Acts shall, pending the determination as to its forfeiture or disposal, be dealt with, and, if condemned or deemed to have been condemned or forfeited, shall be disposed of in such manner as the Commissioners may direct." Section 152 "The Commissioners may, as they see fit - (a) stay, sist or compound any proceedings for an offence or for the condemnation of any thing as being forfeited under the Customs and Excise Acts; or (b) restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized under those Acts; or (c) after judgment mitigate or remit any pecuniary penalty imposed under those Acts ..." Schedule 3, paragraph 16 "Where any thing has been seized as liable to forfeiture the Commissioners may at any time if they see fit and notwithstanding that the thing has not yet been condemned, or is not yet deemed to have been condemned, as forfeited - (a) deliver it up to any claimant upon his paying to the Commissioners such sum as they think proper, being a sum not exceeding that which in their opinion represents the value of the thing, including any duty or tax chargeable thereon which has not been paid ..." Schedule 3, paragraph 7 "Where any thing is in accordance with either of paragraphs 5 or 6 above condemned or deemed to have been condemned as forfeited, then, without prejudice to any delivery up or sale of the thing by the Commissioners under paragraph 16 ..., the forfeiture shall have effect as from the date when the liability to forfeiture arose." B. Judicial review The exercise of the powers conferred on the Commissioners of Customs and Excise are subject to judicial review. The three traditional grounds for judicial review as described by Lord Diplock in Council of Civil Service Unions Minister for the Civil Service ([1985] Appeal Cases 375 (House of Lords)) are illegality, irrationality and procedural impropriety. "Illegality" means that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. "Irrationality" or what is often also referred to as "Wednesbury unreasonableness" applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. "Procedural impropriety" covers failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision, as well as failure to observe procedural rules that are expressly laid down even where such failure does not involve any denial of natural justice. In the case of R. Secretary of State for the Home Department, ex parte Brind ([1991] 1 Appeal Cases 696) the House of Lords held that lack of proportionality is not normally treated as a separate ground of review under English administrative law. Lord Ackner, while considering that an administrative decision which suffered from a total lack of proportionality would be unreasonable in the Wednesbury sense, indicated that until Parliament incorporates the Convention into domestic law, there was no basis at present upon which the proportionality doctrine applied by the European Court of Human Rights could be followed by the courts of the <COUNTRY> (at pp. 762-63). Lord Lowry (at p. 767) cited with approval the following statement from Halsbury's Laws of England (vol. 1 (1) at paragraph 78): "Proportionality: The courts will quash exercises of discretionary power in which there is not a reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground of review in English law, but is regarded as one indication of manifest unreasonableness." Judicial review proceedings in respect of decisions of the Commissioners have been brought in two cases. In R. Commissioners of Customs and Excise, ex parte Haworth (judgment of 17 July 1985), the High Court found that the Commissioners had acted unreasonably in that they had failed to give the owner of goods seized in a smuggling attempt the necessary information about matters held against him and no opportunity to reply thereto. Similarly in R. Commissioners of Customs and Excise, ex parte Tsahl (judgment of 11 December 1989), the High Court required the Commissioners to take as the date of valuation of diamonds which they had seized, for the purpose of determining the amount of the payment for their return, the date of return rather than the date of import.

Singapore, Canada, India, Thailand, United Kingdom

5, 5

On 19 May 2011 the applicant and several other individuals (see, for further information, Šoš <COUNTRY> , no. 26211/13, § 17, 1 December 2015) were arrested on suspicion of drug trafficking and detained under Article 123 § 1(2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending, and seriousness of charges). During the investigation, an investigating judge of the Split County Court ( Županijski sud u Splitu ) several times extended the pre-trial detention in respect of the applicant and the other suspects under Article 123 § 1(2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending, and seriousness of charges). The reasoning of the relevant decisions is outlined in the case of Šoš (cited above, §§ 20 and 23). On 18 August 2011 the investigating judge extended the pre-trial detention in respect of the applicant and the other suspects under Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges). He found that all the relevant witnesses had been questioned and that there was no further possibility of remanding the suspects in detention on the grounds of the risk of collusion. As to the other grounds relied upon for the pre-trial detention, the investigating judge reiterated his previous findings. The investigating judge relied on the same reasons extending the pre-trial detention in respect of the applicant and the other suspects in the further course of the investigation. The reasoning of the relevant decisions is outlined in the Šoš case (cited above, §§ 28, 31, 36 and 41). On 16 May 2012 the applicant and nine other individuals were indicted on charges of drug trafficking in the Split County Court. Following the submission of the indictment, on 18 May 2012 a three-judge panel of the Split County Court extended the pre-trial detention in respect of the applicant and the other accused relying on Article 123 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges). His pre-trial detention was extended several times on the same grounds. The reasoning of the relevant decisions is outlined in the Šoš case (cited above, §§ 44, 47 and 52). On 20 February 2013 the Supreme Court ( Vrhovni sud Republike Hrvatske ), acting as a court of appeal, found that the applicant’s detention should be extended only under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). It explained that the 2013 amendments to the Criminal Code provided that the offence at issue was punishable by a prison sentence of between three and fifteen years and no longer by long-term imprisonment. It was therefore not possible to remand the applicant on the grounds of the seriousness of the charges since the possibility of imposing a sentence of long-term imprisonment was one of the conditions for extending pre-trial detention under Article 123 § 1 (4) of the Code of Criminal Procedure (seriousness of charges). On 20 April 2013 a three-judge panel of the Split County Court extended the pre-trial detention in respect of the applicant and the other accused under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), without changing its previous reasoning. On 17 May 2013 a three-judge panel of the Split County Court extended the maximum two-year statutory time-limit for the applicant’s pre-trial detention under Article 133 § 1 (4) of the Code of Criminal Procedure for a further six months (until 19 November 2013) relying on section 35(2) of the Office for the Suppression of Corruption and Organised Crime Act (hereinafter “the OSCOCA”). The applicant appealed to the Supreme Court arguing that section 35(2) of the OSCOCA was inapplicable to his case since he was not detained during the investigation. On 7 June 2013 the Supreme Court dismissed the applicant’s appeal on the grounds that the said provision of the OSCOCA made a mistaken reference to Article 130 § 2 of the Code of Criminal Procedure. It also considered that the cited provision was incomprehensible since, if understood as provided in that Act, it merely repeated paragraph 1 of section 35 of the OSCOCA, which would be obsolete. Instead it should be interpreted in line with the previous abrogated version of the OSCOCA, which in its section 28(3) had provided for a possibility of extension of the overall maximum period of detention for a further six months, which was in the applicant’s case until 19 November 2013. On 18 June 2013 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) reiterating his previous arguments. On 11 July 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, endorsing the reasoning of the Supreme Court. The applicant’s pre-trial detention was extended, under Article 123 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), until the maximum period expired on 19 November 2013, when he was released.

Croatia

6

On 6 December 1991 the applicant was charged with sexual assault of a minor and abduction of minors. He was remanded in custody. On 30 April 1992 the applicant was released. On 5 June 1992 the applicant’s trial started before the Nova Gorica District Court ( Okrožno sodišče – “the District Court”). On the same day the case was adjourned. On 16 June 1992 the District Court ordered the redetention of the applicant. On 28 August 1992 a number of witnesses were heard and on 3 September 1992 the District Court again adjourned the applicant’s trial due to the applicant’s illness. By decision of the District Court dated 17 September 1992, the applicant was again released. A hearing scheduled for 28 September 1992 had to be adjourned sine die as the applicant was On 21 July 1992 the applicant was accused of another sexual assault of a minor. An indictment was filed on 18 January 1993. The applicant entered a plea against the indictment which was rejected on 15 February 1993. On 17 March 1993 the District Court joined the two sets of proceedings. On 2 June 1993 the public prosecutor requested further investigations on the ground that there was reasonable suspicion that the applicant had also criminally neglected and ill-treated a minor within the meaning of Article 96 §§ 1 and 2 of the Criminal Code. On 21 October 1993 a preliminary charge was filed in respect of the aforesaid acts. On 28 March 1995 the District Court decided to deal with all charges against the applicant in a single set of proceedings. In the period from 18 February 1997 to 9 July 1997 the District Court held several hearings. On 9 July 1997 the District Court convicted the applicant of sexual offences on several counts. A combined prison sentence of two years and eight months was imposed on the applicant. Both the applicant and the public prosecutor appealed. On 12 February 1998 the Koper High Court ( Višje sodišče ) rejected the applicant’s appeal and increased the sentence to three years’ imprisonment. On 26 March 1998 the applicant lodged a plea of nullity ( zahteva za varstvo zakonitosti ). The District Court transmitted it to the Supreme Court ( Vrhovno sodišče ), together with the file, on 5 June 1998. The Supreme Court dismissed this complaint on 17 September 1998. On 24 March 1998 the applicant lodged a constitutional complaint against the Koper High Court’s judgment of 12 Februrary 1998. It was dismissed by the Constitutional Court ( Ustavno sodišče ) on 15 June 1998. On 12 October 1998 the applicant filed a further constitutional complaint concerning the Supreme Court’s decision of 17 September 1998 (see paragraph 17 above). He alleged, inter alia , a violation of Article 6 § 3 of the Convention in the criminal proceedings against him. On 1 December 1998 the Constitutional Court refused to send the case back to the lower courts for a new examination as it found no violation of the applicant’s right to a fair hearing.

6

The applicant was born in 1937 and lives in Moscow. On 26 March 1999 she bought a plot of land and a summer house in Michurinsk. On 13 January 2000 a dealer who had assisted her in buying the property instituted proceedings against her, claiming recovery of a debt totalling 1,000 US dollars. On 24 April 2000 the Michurinskiy Town Court of the Tambov Region dismissed the claim. On 29 May 2000 the Tambov Regional Court quashed the judgment and remitted the case to the Michurinskiy Town Court for a fresh examination. On 7 September 2000 the applicant filed an application for the case to be transferred to the Perovo District Court of Moscow. On 15 September 2000 the Michurinskiy Town Court granted the application and transferred the case. On 20 September 2000 the case file was sent to the Perovo District Court. On 15 November 2000 the plaintiff filed a complaint against the transfer of the case. On 14 December 2000 the Michurinskiy Town Court requested the Perovo District Court to confirm receipt of the case file. On 25 December 2000 and 15 February 2001 the Michurinskiy Town Court requested the Perovo District Court to send the case file back so that the plaintiff's complaint could be examined. On 21 February 2001 the Perovo District Court replied that it could not return the case file because the case in question had not been registered with it in the period 2000-2001. On 2 April 2001 the Michurinskiy Town Court again repeated the request. On 7 May 2001 the Perovo District Court returned the case file to the Michurinskiy Town Court. On 12 July 2001, following an application for supervisory review lodged by a member of the Presidium, the Presidium of the Tambov Regional Court quashed the Michurinskiy Town Court's ruling of 15 September 2000 concerning transfer of the case to the Perovo District Court of Moscow on the ground, inter alia , that the plaintiff had not been duly notified of the hearing. According to the Government, two hearings were fixed by the Michurinskiy Town Court for 28 August and 13 September 2001, but the applicant did not appear at either hearing. It is not clear whether these were hearings on the merits or whether the court was merely dealing with certain procedural issues. On 28 January 2002, following another application for supervisory review lodged by the Deputy Chairman of the Supreme Court of Russia, the Supreme Court of Russia quashed the ruling of 12 July 2001 on the grounds that the applicant had not been duly notified of the hearing, and remitted the case to the Tambov Regional Court for a fresh examination. On 21 March 2002 the Presidium of the Tambov Regional Court again quashed the ruling of the Michurinskiy Town Court of 15 September 2000. On 25 April 2002 the applicant filed an application with the Michurinskiy Town Court, requesting that the case be transferred to the Perovo District Court. In September 2002 the applicant lodged an application with the Chairman of the Supreme Court requesting supervisory review of the ruling of 21 March 2002. On 19 February 2003 the Supreme Court returned the application without consideration, as a number of procedural requirements had not been fulfilled. Two hearings on the merits were fixed by the Michurinskiy Town Court for 15 and 22 August 2003. The parties did not appear at either of those hearings. On the latter date the court decided to leave the claim without consideration. That ruling was not appealed against.

6, 6

The applicant’s father, J.-Lagardère, was chairman and managing director of the Matra and Hachette companies. On 29 December 1992 Lambda, a company representing certain shareholders in Matra and Hachette, lodged a complaint for misappropriation of corporate assets, together with an application to join the proceedings as a civil party. By an order of 21 June 1999, J.-Lagardère was sent before the Paris Criminal Court on suspicion of having, between 1988 and 1992, as chairman and managing director of Matra and Hachette in Paris, knowingly fraudulently misused assets of those companies against their interest, in particular by letting them bear the full cost of an annual licence fee equal to 2% of the two companies’ turnover, only part of which was justified, for his personal gain or to help another company in which he had a direct or indirect interest. Two agreements were signed for the purpose: one on 1 October 1988, between Matra and the Arjil Group, and the other on 1 November 1988, between Hachette and the Arjil Group. They were adopted by the general assemblies of Hachette and Matra on 20 June 1989 and 26 June 1989 respectively. In a judgment of 22 June 2000 the Paris Criminal Court declared the prosecution against J.-Lagardère time-barred, the starting point for the purposes of limitation being fixed at 20 and 26 June 1989, the dates of signature of the agreements by the shareholders. As a result, the court declared the civil party action brought by Lambda inadmissible. On 22 and 28 June 2000 Lambda and the public prosecutor at the Paris tribunal de grande instance appealed. In a judgment of 25 January 2002 the Paris Court of Appeal confirmed the judgment in all its provisions. Lambda appealed on points of law. On 14 March 2003 J.-Lagardère died. In a judgment of 8 October 2003, after declaring that the prosecution had lapsed, this time as a result of the accused’s death, the Criminal Division of the Court of Cassation quashed and annulled the judgment of the Paris Court of Appeal concerning the civil action, considering that the moment at which time had started to run for the purposes of limitation was the presentation of the auditors’ special report to the general assemblies, which post-dated the signature of the disputed agreements. The case was sent before the Versailles Court of Appeal. Jean-Luc Lagardère’s heirs, his widow E.P.and the applicant, challenged that court’s competence to judge the civil action. In a judgment of 30 June 2005 the Versailles Court of Appeal dismissed that objection, considering that the civil action continued when the offender’s death occurred after a decision on the criminal prosecution had been given. It declared the instances of misappropriation of corporate assets committed in 1988 time-barred, but not those committed in the financial years 1989 to 1992. The court accordingly considered that it had first to determine whether the constituent elements of the offence of misappropriation of corporate assets were established in respect of Arnaud Lagardère’s late father. To do this it examined “the personal interest” in the signature and execution of the contracts in issue, “whether they were against the corporate interests of Matra and Hachette”, and whether J.-Lagardère had acted in “bad faith”. It concluded its reasoning in the following terms: “the system set in place ... at the request of Mr [J.-] Lagardère ... constitutes the offence of misappropriation of corporate assets to the detriment of Matra and Hachette.” The Court of Appeal explained that the profit had been 94,100,000 French francs (FRF), or 14,345,452.52 euros (EUR), without any real added value for the injured companies. In the operative part of its judgment the Court of Appeal held: “that the constituent elements of the offence of misappropriation of corporate assets to the detriment Matra and Hachette are established for that period against Mr Jean-Luc Lagardère.” In view of that finding the Court of Appeal ordered E.P.and the applicant, as the heirs, to pay the civil party EUR 14,345,452.52 in damages. The applicant, E.P., Lambda and the Principal Public Prosecutor at the Court of Appeal appealed on points of law. In support of his appeal the applicant argued that there had been a violation of Article 6 of the Convention because the criminal court had no authority to judge the matter after his father’s death. In his opinion on the appeal the advocate-general at the Court of Cassation, having examined the different possible solutions and the relevant legal theory and case-law, concluded that the Versailles Court of Appeal had no authority to judge the civil action after J.-Lagardère’s death. He also justified his opinion on principle. First, he pointed out that whatever the place reserved for the victim in the criminal trial, the judgment of the civil action remained contingent on the outcome of the criminal proceedings as it required the prior demonstration of the existence of an offence of which a particular individual was guilty, which ruled out the possibility of continuing the action against the heirs. He cited a passage from an authoritative work ( Précis de procédure pénale , by Professors Stefani, Levasseur and Bouloc, 19th edition): “in our modern law we no longer bring actions against the dead or the memory of the dead”. Next, he explained that the need for a violation of the criminal law which was inherent in any decision of the criminal courts justified the fact that, for the court even to rule only on the civil action, the accused had to be given a criminal trial that respected the “principle that hearings must be oral ... and the adversarial nature of the trial, which was an essential component of a fair trial. In other words, in order for the criminal court to be able to rule, in both the criminal and the civil proceedings, there is a condition: the effective participation of the accused in his trial”. This meant that in order for the criminal court to be able to examine the civil action alone, it would be necessary for the accused “at one time or another, to have had an effective opportunity to submit his arguments in full concerning the presence and the solidity of all the constituent elements of the offence with which he has been charged, and his responsibility in the matter”. In a judgment of 25 October 2006 the Court of Cassation declared the Principal Public Prosecutor’s appeal inadmissible and rejected those lodged by the applicant and E.P.Regarding the arguments submitted by the applicant, the judgment read as follows: “In overruling the objection that the criminal court had no authority to hear the civil action brought by the heirs of [J.-Lagardère] because no decision had been given on the merits in the criminal proceedings prior to the death of the accused, the judgment states, among other things, that the proceedings and the judgment found that the prosecution was time-barred before the accused died; furthermore, the criminal court to which the case was remitted by the Court of Cassation is the only court competent to determine whether the prosecution was time-barred and whether, having regard to the civil claim, the constituent elements of the offence of misappropriation of corporate assets have been made out; In pronouncing itself in those terms the Court of Appeal justified its decision; Trial courts before which action was lawfully taken before the criminal prosecution lapsed continue to have jurisdiction in the civil proceedings...” Ruling on the civil party claim, it quashed and annulled the judgment of the Court of Appeal solely on the issue of the capitalisation of the interest on the sums owed by J.-Lagardère’s heirs. On that occasion it noted that the Court of Appeal had “found Jean ‑ Luc Lagardère guilty”.

5, 5

A. Criminal proceedings against the applicant On 29 May 1997 the Donetsk Kirovskyy District Court (“the Kirovskyy Court”) found the applicant guilty of robbery and sentenced him to three years’ imprisonment. On 18 July 1997 the Donetsk Regional Court of Appeal (“the Regional Court”) granted amnesty to the applicant. On 26 September 1997 the same court, following an objection (протест) by its president, quashed the decision of 18 July 1997 and upheld the judgment of 29 May 1997 by a final decision. The applicant became aware of the Regional Court’s decision of 26 September 1997 only after his arrest in February 2003 (see paragraph 10 below). B. Service of sentence and proceedings on the lawfulness of the applicant’s arrest and detention In October 1997 the Kirovskyy Court sent its judgment to the local police with a view to ensuring its enforcement. As submitted by the applicant and eventually established by the domestic courts (see paragraph 12 below), he continued living at his permanent address. Although he was placed on a wanted list for a brief period in December 1997, neither during that period nor thereafter did the police try to contact him. On 12 February 2003 the Kirovskyy police arrested the applicant at his home and brought him to Dzerzhynsk prison no. 2 to serve his sentence. Following numerous unsuccessful complaints to the prosecution authorities, in March 2003 the applicant lodged a complaint with the Kirovskyy Court, stating that his arrest and detention had been unlawful and requesting to be released. After several rounds of proceedings, on 23 March 2006 the Kirovskyy Court allowed the applicant’s claim and found the impugned actions of the police officers unlawful. The court found no evidence in the case file that the applicant had been informed of the court hearing and the final decision of 26 September 1997. He had been arrested more than five years later. By that time his sentence had become time-barred, a fact which the police had been obliged, but had failed, to check. As regards the applicant’s request for release, the Kirovskyy Court stated that the issue was no longer of relevance (see paragraph 14 below). On 23 June 2006 the Regional Court upheld the above decision. In the meantime, on 27 April 2005, the Dzerzhynskyy Local Court ordered the applicant’s release on parole. The applicant was released on 4 May 2005 once all the formalities had been completed. Compensation proceedings In 2006 the applicant lodged a claim for damages against the Ministry of the Interior on account of his unlawful arrest and detention. He relied on the Compensation Act, under which a person could claim such compensation if the unlawfulness of his or her arrest and detention had been established by a judicial decision (see paragraph 26 below). The applicant referred in that connection to the court’s decision of 23 March 2006, in which his deprivation of liberty had been found to be unlawful (see paragraph 12 above). On 3 April 2007 the Kirovskyy Court rejected his claim as unfounded. It noted the existence of the judicial decision referred to by the applicant without, however, commenting on it. The court observed that the applicant had appealed against neither the judgment of 29 May 1997 nor the ruling of 26 September 1997 (see paragraphs 6 and 8 above). It also observed that he had been released without any conclusion about his guilt. Having relied on the above considerations, the Kirovskyy Court concluded that the applicant had failed to prove that he had been deprived of his liberty unlawfully. On 26 June 2007 the Regional Court upheld that decision. On 22 August 2007 the applicant’s representative, G., appealed on points of law. On 6 September 2007 the Supreme Court gave the applicant a deadline of 16 October 2007 to submit the power of attorney. Its ruling referred to the applicant’s case number as registered by the Supreme Court. As confirmed by a postal acknowledgement of receipt, on 17 October 2007 the Supreme Court received a registered letter from the applicant’s representative, which had been dispatched on 12 October 2007 and which concerned the case under the number indicated in the ruling of 6 September 2007. According to the applicant, his representative had sent the requested authority form by the above-mentioned registered letter. According to the Government, the content of that letter and the documents enclosed, if any, could not be established in the absence of their detailed description on the acknowledgment of receipt. On 30 October 2007 the Supreme Court returned the applicant’s appeal on points of law without examination. It held that, contrary to its instructions of 6 September 2007, he had failed to submit the power of attorney “within the set time-limit and before the delivery of the present ruling”. On 9 November 2007 the Supreme Court sent its ruling to the applicant’s representative. According to the applicant, his representative received it on 24 November 2007. On 3 December 2007 G. requested that the Supreme Court give reasons for the dismissal of the applicant’s appeal on points of law, since the ruling of 6 September 2007 had been complied with. There was no reply to that request.

3, 8

THE PARTICULAR CIRCUMSTANCES OF THE CASE The applicant, who is a French citizen, was born in 1935 at Sidi Bel Abbès, <COUNTRY>, and was registered with the civil status registrar as of male sex, with the forenames Norbert Antoine. A. The background to the case Miss B., the eldest of five children, adopted female behaviour from a very early age. She was considered as a girl by her brothers and sisters and is said to have had difficulty coping with a wholly segregated scholastic environment. She completed her military service in <COUNTRY>, as a man, and her behaviour at the time was noticeably homosexual. After spending five years teaching reading and writing to young persons from Kabylia, she left <COUNTRY> in 1963 and settled in Paris, working in a cabaret under an assumed name. Distressed by her feminine character, she suffered from attacks of nervous depression until 1967, when she was treated in hospital for a month. The doctor who treated her from 1963 observed a hypotrophy of the male genital organs and prescribed feminising hormone therapy, which rapidly brought about development of the breasts and feminisation of her appearance. The applicant adopted female dress from then on. She underwent a surgical operation in <COUNTRY> in 1972, consisting of the removal of the external genital organs and the creation of a vaginal cavity (see paragraph 18 below). Miss B. is now living with a man whom she met shortly before her operation and whom she at once informed of her situation. She is no longer working on the stage, and is said to have been unable to find employment because of the hostile reactions she aroused. B. The proceedings brought by the applicant Before the Libourne tribunal de grande instance Miss B., wishing to marry her friend, brought proceedings against the Libourne public prosecutor (procureur de la République) on 18 April 1978, asking the court "to hold that, registered in the civil status register of [her] place of birth as of male sex, [she was] in reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her] birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette". On 22 November 1979 the Libourne tribunal de grande instance dismissed her action for the following reasons: "... Whereas it is clear from the experts’ report and is moreover not contested that [B.], correctly registered at birth as of male sex, developed towards female morphology, appearance and behaviour, apparently because of congenital hypogenesis ... and psychological tendencies following hormone treatment and surgical operations; Whereas it is thus apparent that the change of sex was intentionally brought about by artificial processes; Whereas the application of Norbert [B.] cannot be granted without attacking the principle of the inalienability of the status of individuals; ..." Before the Bordeaux Court of Appeal The applicant appealed, but on 30 May 1985 the Bordeaux Court of Appeal upheld the judgment of the lower court. The court said inter alia: "... contrary ... to Mr [B.’s] contention, his present state is not ‘the result of irreversible innate factors existing before the operation and of surgical intervention required by therapeutic necessities’, nor can it be considered that the treatment voluntarily undergone by Mr [B.] led to the disclosure of his hidden true sex, but on the contrary it indicates a deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development. ..." Before the Court of Cassation Miss B. appealed to the Court of Cassation. Her single ground of appeal was as follows: "This appeal complains that the challenged judgment dismissed the appellant’s application for rectification of civil status, On the grounds that if, notwithstanding the principle of the inalienability of the status of individuals, an amendment can be made where ‘irreversible necessity, independent of the individual, compels this’, which may be the case with real transsexuals, such amendment can be approved only after a long period of observation and reflection prior to the operation stage, during which a qualified medical team can ‘gradually reach the conclusion that the situation is genuine and irreversible’; that in this case ... ‘no form of psychological or psychiatric treatment was tried’; that ‘the first doctor who prescribed hormone treatment did not carry out any protracted observation, no guarantee of such observation was given before the surgical operation carried out abroad’; that ‘the apparent change of sex was brought about solely by Mr [B.’s] intention and it is clear that even after the hormone treatment and surgical operation he still shows the characteristics of a person of male sex whose external appearance has been altered thanks to cosmetic plastic surgery’; that, therefore, far from having led to the ‘disclosure of his hidden true sex’, the treatment undergone by him indicates a ‘deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development’ ...; Whereas sexual identity, which is a fundamental right of the individual, is constituted not only by biological components but also by psychological ones; that by considering surgery undergone by a transsexual to bring his anatomy into harmony with his being as inoperative merely because he still kept his male genetic and chromosomal characteristics, and by not undertaking any investigation of his contradictory psychological history - investigation which was not prevented by the lack of psychotherapy of the patient before the operation, bearing in mind the expert report produced for the court - the Court of Appeal deprived its decision of any legal foundation with respect to Article 99 of the Civil Code. ..." The applicant’s supplementary pleadings opened with the following "introduction": "The Court of Cassation now has a fresh chance to let transsexuals enter into normality, by allowing them rectification of their civil status. The solution is legally possible since the European Commission of Human Rights has stated sexual identity to be a fundamental right of the individual. It is humanly necessary in order for people who are not medically perverted but are merely victims of aberrations of nature finally to be able to live in harmony with themselves and with the whole of society." It also included an argument relating to the Convention: "In the European legal system this argument [accepting the transsexual’s right to recognition of his true identity] has been entirely accepted, thus making up for the absence of a French statutory provision on the point. The European Commission of Human Rights, when applied to by a transsexual whose request had been dismissed by a final judgment of the Brussels Court of Appeal, considered that by refusing to take account of changes which had occurred lawfully <COUNTRY> had failed to observe the respect due to the applicant’s private life within the meaning of Article 8 para. 1 (art. 8-1) of the European Convention on Human Rights; and that by refusing to take into account ‘his sexual identity resulting from his change of physical form, his psychical make-up and his social role ... <COUNTRY> had treated the applicant as an ambiguous being, an appearance’ ... This follows from a report dated 1 March 1979, which recognises that sexual identity is a fundamental right of the individual [] . <COUNTRY> has expressly subscribed thereto by issuing a declaration [recognising] the right of individual petition to the European Commission of Human Rights ..." The appeal was dismissed by the First Civil Chamber of the Court of Cassation on 31 March 1987 for the following reasons: "Whereas, according to the findings of the court below, Norbert [B.] submitted an application to the tribunal de grande instance for a declaration that he was of female sex, that his birth certificate should consequently be amended, and for authorisation henceforth to bear the forenames Lyne Antoinette; whereas his application was dismissed by the confirmatory judgment under appeal; Whereas Norbert [B.] complains that the Court of Appeal (Bordeaux, 30 May 1985) so decided despite the fact that sexual identity is constituted not only by biological components but also by psychological ones, so that by taking a decision without carrying out any investigation of his psychological history it deprived its decision of any legal foundation; Whereas, however, the court of second instance found that even after the hormone treatment and surgical operation which he underwent Norbert [B.] continued to show the characteristics of a person of male sex; whereas it considered that, contrary to the contentions of the person in question, his present state is not the result of elements which existed before the operation and of surgical intervention required by therapeutic necessities but indicates a deliberate intention on the part of the person concerned; whereas it thus justified its decision in law; whereas the ground of appeal can therefore not be upheld; ..." (Bulletin des arrêts de la Cour de cassation, chambres civiles (Bull. ) I, 1987, no. 116, p. 87)

Morocco, Algeria, Belgium, France

A. The background to the case In November 2003 criminal investigations were launched in respect of A and B who were suspected of the repeated and serious ill-treatment and sexual abuse of 10-year-old C, which had caused severe injuries. C is A’s biological daughter and B’s stepdaughter. C was taken to hospital and several media reported the case. At that time D, C’s biological mother, who had learned from the media about what had happened to her daughter, wanted to see her but, since she did not have custody of her, this request was refused. Thereupon she contacted the first applicant company in the hope that it would help her obtain contact with , a journalist for the first applicant company, visited her at her home, took pictures of her, received from D a picture showing C at the age of three years, accompanied D to the hospital where C was staying and took further pictures there. On the basis of this material, at the end of 2003 several articles on the case of C were published in Kronen Zeitung , as well as a call for donations ( Spendenaufruf ) for Once the X Regional Youth Welfare Agency ( Jugendwohl ­ fahrtsträger des Landes X ) became aware of these events it advised D and her spouse that it would be in C’s best interests if they refrained from providing pictures of her and further information to the media. After C left hospital in May 2004 she stayed with On 9 December 2004 custody of C was transferred to the Regional Youth Welfare Agency for the period of 1 December 2003 to 29 November 2004 and then from 30 November 2004 onwards it was transferred to The trial of B and A was held in February 2005 and media interest in the case grew again. At the same time C had a relapse and began suffering from severe psychological problems again, making it necessary for her to be re-admitted to hospital. On 21 February 2005 A and B were convicted of aggravated sexual abuse of minors ( schwerer sexueller Missbrauch von Unmündigen ), deliberate aggravated bodily harm ( absichtliche schwere Körperverletzung ) and ill-treatment of minors ( Quälen von Unmündigen ). They were sentenced to fifteen years’ imprisonment and ordered to pay compensation for non-pecuniary damage. The first applicant company published two articles in Kronen Zeitung on 16 and 22 February 2005 respectively, using the first name of C, the full names of A and B, and illustrating them with photographs of A and B The second applicant company published two articles on its website www.krone.at on 16 and 22 February 2005 and, in addition to the information contained in the articles published in Kronen Zeitung , it also published photos of C, including a close-up of her face. On 12 May 2005, with D’s consent, the District Court transferred custody rights in relation to one specific task back to the Regional Youth Welfare Agency, namely on the issue whether, in respect of the reporting on the trial of A and B, C had compensation claims against certain newspapers and, if necessary, to take the appropriate measures. B. The articles which appeared in Kronen Zeitung and on www.krone.at On 16 February 2005 an article [1] was published in the first applicant company’s newspaper ( Kronen Zeitung ) entitled “C case: when humans turn into animals” ( “Fall C: Wenn Menschen zum Tier werden” ), which read as follows: “Modesty – what a fine word. A word that presupposes respect. But how out of place coming from the mouth of a father who kicked his 10-year-old daughter with his bare feet until several of her ribs were broken. How out of place when the same father claims that he did not treat his daughter’s injuries caused by a red-hot iron because modesty prevented him from touching her breasts... X Regional Criminal Court. Three judges and eight jurors have to pronounce sentence in three sets of proceedings against A and B (both [age]): A and B, known to Krone readers as the parent torturers. Their victim: C, A’s daughter from his first marriage. A girl who, after her parents’ divorce, lived for a long time with her grandparents in Y. A child who couldn’t wait to join her father and his second wife B here in X – and ended up in hell. Literally ill-treated till she bled. Tortured and abused. Members of the jury turn ghostly white when public prosecutor T. reads from the prosecution file: ‘C was injured with red-hot spoons, deprived of her virginity with a cooking spoon, burnt with a hot iron. She was hurled against the wall until her skull fractured. C was also tied up to her bed in prayer position for nights on end. She was badly injured with a kitchen knife...’ Why? Sometimes it is not important why human beings behave like animals. Sometimes the facts are enough. And yet Judge J.J. proceeds brilliantly to shed light on every aspect of this crime against a child. For hours on end he listens patiently to the whimpering defence of the father. He patiently sits through the hair-raising account of the stepmother. The accused agree on only one thing. Neither will admit responsibility. Just a touch of corporal punishment to keep family life intact – that much they admit. Both say they were afraid of or were dominated by the other. A: ‘I’m fond of all five (!) of my children, including I was dominated by my wife, and when she told me that C masturbated I believed her and had to do something’ he says. And his wife: ‘I just wanted to protect my other children from C so I hit her once and I might have pulled her hair.’ Be that as it may, the way the couple defend themselves in court is nothing short of disgusting. As I just said, the facts speak volumes. You listen to what went on for weeks in the flat in P. Street. You close your eyes – and still see Who actually delivered the blows ceases to matter. What matters is that C is now living safely with her real mother and a caring stepfather. She has just spent her first ever holiday in Tyrol. She’s made friends in a new school. She can certainly not understand everything that happened. It can only be hoped that one day she’ll be able to forget. And that the father’s wish (‘I’d like to see my C again some day’) is never granted.” On the same day the second applicant company published an article on its website ( www.krone.at ) entitled “Start of the trial in the C case” ( Auftakt zum Prozess im Fall C ). Its text is identical to the above article. On 22 February 2005 a further article was published in the first applicant company’s newspaper ( Kronen Zeitung ), entitled “Maximum sentence for parent torturers!” ( “Höchststrafe für Folter-Eltern!” ), which read as follows: “The triangular shape of the iron is like a permanent reminder to C, ‘branded’ into her child’s body. ‘The violence against this girl ranks as one of the most abhorrent of crimes’ says Judge J.J. in pronouncing judgment on the parent torturers. A total of thirty years’ in prison – the maximum sentence. What must C’s small body have endured? What thoughts must have gone through the 10-year-old girl’s head when her stepmother and her father either ill-treated her or watched the other do it? It’s not the sober words of forensic expert R. that send a shudder down your spine. It’s the thought of what the girl must have endured before ending up in hospital with multiple rib fractures, a fractured skull, burns to her skin, cuts going right through to the bone, stripped of her virginity and dignity. A child’s mind damaged beyond repair. The ‘parents’ listen with bowed heads to what the experts say about ‘their child’. They hear how cosmetic surgery can reconstruct, but how no medicine can cure the psychological damage. The effects of her ordeal will remain with her for life. ‘She was a very nice, quiet child’ says her former head teacher. ‘We never suspected anything. Her father enquired about her lovingly. When he came in to say that C would not be attending any more because she was in Yugoslavia, no one imagined that she was lying at home injured.” On the same day the second applicant company published an article on its website ( www.krone.at ) entitled “Maximum sentence for parents in C case” ( “Höchststrafe für Eltern im Fall C” ). Its text is identical to the above article. The proceedings under the Media Act On 9 August 2005 C, represented by the Regional Youth Welfare Agency, filed a claim for compensation against the first applicant company, relying on section 7a of the Media Act on the ground that the first applicant company had caused her suffering by revealing her identity as the victim of a criminal offence by publishing her first name, the full names and pictures of A and B in two articles which had appeared on 16 and 22 February 2005. C also filed a compensation claim against the second applicant company relying on sections 7 and 7a of the Media Act for revealing her identity as the victim of a criminal offence and for violating her right to protection of her strictly private life ( höchstpersönlicher Lebensbereich ) in two articles published on 16 and 22 February 2005. On 27 June 2006 the X Regional Criminal Court ( Landesgericht für Strafsachen ) granted both requests for compensation. As regards the first applicant company it found that the two articles published in the newspaper Kronen Zeitung on 16 and 22 February 2005 had violated C’s right to protection of her identity as the victim of a criminal offence under section 7a of the Media Act and ordered the first applicant company to pay 4,000 euros (EUR) in compensation to C for each of the articles, altogether EUR 8,000. It also found that C was entitled to compensation from the second applicant company as the articles published on its website on 16 and 22 February 2005, including photos of her, had violated her right to protection of her identity as the victim of a criminal offence and had also interfered with her strictly private life in a manner which exposed and compromised her in public, thereby breaching her rights under section 7 of the Media Act. The Regional Court ordered the second applicant company to pay EUR 6,000 in compensation to C for each of the articles, altogether EUR 12,000. It also ordered the applicant companies to publish a summary of its judgment. As regards the applicant companies’ argument that D, C’s biological mother, had consented to the disclosure of C’s identity and the publication of photos of her, the Regional Court, having heard as witnesses D, her husband, and , a journalist writing for the applicant companies, considered that at the time of the publication of the impugned articles there had been no valid consent as neither the person with custody of C nor any other reference person ( Bezugsperson ) had consented to the disclosure of C’s identity or the publication of pictures of her. Even considering that D had validly consented to the applicant companies’ reporting on the case of C and to publishing pictures of her back in 2003, that consent could not automatically cover publications two years later in the context of the trial of A and B. After such a long period of time had passed, confirmation of D’s consent should have been sought as in case of doubt nobody can be deemed to have consented to an interference with his or her personality rights for an indefinite period of time. Moreover, in 2005 D had explicitly refused to give her consent to reporting in which C’s identity would be revealed to the public. As regards the compensation claim under section 7 of the Media Act, the Regional Court found that a person was entitled to compensation if his or her strictly private sphere had been discussed in the media in a manner which was apt to expose and compromise him or her in public. Into this strictly private sphere fall the inner circle of one’s private life ( engster Bereich der menschlichen Intimsphäre ), emotions and physical sensations, one’s sexual life, and contacts with one’s closest persons of confidence ( Kontakt mit engsten Vertrauten ). The lurid presentation of the publications at issue, which made public highly sensitive details of the ill-treatment and sexual abuse to which C had been subjected and which were particularly humiliating, had interfered with C’s most intimate personal sphere. In weighing the interests of the applicant companies against those of C, the Regional Court considered that the offensive details had not been necessary for informing the reader even in a detailed manner on the case of C, while on the other hand, a minor victim of crimes of this kind was entitled to particularly strong protection. The Regional Court concluded that C’s interests protected by section 7 of the Media Act had not been respected and that she was therefore entitled to compensation. As regards the compensation claim under section 7a of the Media Act the Regional Court found that by mentioning the first name of the victim, her age, the full names of the offenders, indicating their family relationship to the victim, by publishing pictures of the father and the stepmother and in two articles even publishing photos of her, the victim became recognisable to a wide number of persons beyond the circle of those directly informed. In the Regional Court’s view there was no predominant public interest which would have made revealing the victim’s identity permissible. Such a predominant public interest must relate to the identity of the person, and that particular information should have a genuine news value. A merely general interest in appropriate press reporting on criminal cases was not sufficient. C was not a public figure and the mere fact that she had become the victim of a crime which attracted considerable public attention was not sufficient to consider her a person connected with public life. Also, the fact that the media had already reported on her in 2003, in some cases revealing her identity, did not make her a person connected with public life because a considerable amount of time had passed in the meantime and a newspaper’s readership changed constantly. A genuine interest in the identity of the victim could not be established. There was no predominant public interest in revealing the identity of the offenders as the public could be informed on the psychological dynamics of crimes of violence and sexual abuse committed within the family without revealing the identity of the victim. Therefore, these articles, which had described in detail the severe ill ‑ treatment of the victim, constituted an intrusion into the victim’s strictly private life and violated her interest in remaining anonymous. She was therefore entitled to compensation on this ground as well. As to the amount of the compensation, the Regional Court stated that it had taken into account the particular gravity of the interference and the particularly large dissemination of the applicant companies’ media. As regards the second applicant company, a higher amount had to be awarded as the compensation was based on two grounds. On 11 October 2006 the applicant companies appealed. They argued that there had been a predominant public interest in being informed of the identity of the offenders. The role of the media as public watchdog meant in the present case that they had the task of informing the public about a defenceless child who had become the victim in a family drama and to warn the public through giving a detailed report including personal details of the offenders and the victim, which was necessary for a public discussion of these events. They argued further that the reporting had been allowed because D had given her consent. On 19 February 2007 the X Court of Appeal dismissed the appeal. It found that according to section 7a of the Media Act the identity of the victim of a criminal offence could only be revealed if there was a predominant public interest in that specific item of information. The permissibility of revealing the identity of an offender did not mean that the identity of the victim could also be disclosed. This question had to be examined separately and carefully. C was not a public figure nor was she a person otherwise connected with public life. Even accepting that there was a public interest in being informed of crimes of violence and sexual abuse committed within the family, that interest could be met without revealing the victim’s identity. Also, the conditions for compensation under section 7 of the Media Act had been met because the articles at issue contained a detailed description of the criminal acts committed, in particular of the injuries caused including the defloration of the victim, and thereby had discussed her strictly private life in a manner that was apt to expose and compromise her in public. As to the alleged consent of D to the applicant companies’ publications, the Court of Appeal found that the Regional Court had properly examined this matter and had concluded that there had been no valid consent. Given that the maximum amount of compensation was EUR 20,000, the sums actually fixed were moderate.

A. Factual background The applicant was married to Mrs J.Together they had two boys born in 1994 and 1996. He receives a disability pension on account of Attention Deficit Hyperactivity Disorder (ADHD). He is active as an instructor in ice hockey and football. In July 2001, the applicant's wife moved out of their home and went to live in <COUNTRY>. The children have since lived with the applicant. Shortly after her departure, Mrs J.sought to obtain an interlocutory injunction granting her the sole responsibility for the daily care of the children, arguing that the applicant had physically abused her and had an abusive consumption of medication. The applicant has been taking medication for ADHD and for an earlier back injury. Both the Stavanger City Court ( byrett ) and Gulating High Court ( lagmannsrett ) rejected her request. Subsequently the applicant and Mrs J.concluded a judicial settlement agreement according to which he was to assume the daily care. Concurrently with the above, Mrs J.reported the applicant to the police alleging that he had assaulted and threatened her. The police granted a request for an injunction prohibiting the applicant from visiting her or calling her by telephone but, after having heard the applicant, they dismissed all her complaints and lifted the prohibition. First investigation and additional home visit carried out by the child welfare services In addition, Mrs J.reported her concerns ( bekymringsmelding ) to the local child care authorities, alleging that the applicant was abusing intoxicating substances and that the children were at risk of violence. The child welfare services ( Barneverntjenesten ) at the Hillevåg District Office ( helse- og sosialdistrikt ) opened an investigation (hereinafter referred to as “the first investigation”) under section 4-3 of the Child Welfare Services Act 1992 (hereinafter referred to as “the 1992 Act”), in order to verify whether there was any ground for taking child care measures under the 1992 Act (notably under section 4-12 which sets out the grounds for compulsory taking into care of a child, such as serious deficiencies in the child's daily care, ill-treatment or other serious abuse occurring in the home, likelihood of parents' inability to provide care causing serious damage to the child's health or development). As a result, from 22 August 2001 until the end of October 2001, the authorities carried out 10 unannounced visits to the applicant's home. The applicant felt that the Hillevåg District Office held preconceived views against him, due to the number of visits over a period of two months, inter alia in order to reveal high consumption of medicines, and that confidential information had been imparted to Mrs J.in this way. After exchanges between his lawyer and the Hillevåg District Office, the matter was transferred to the child welfare services at the Hinna District Office, which had their first conversation with the applicant on 7 November 2001. He was reticent to talk to begin with but, after being told that his ability to shield the children against the parental conflict was of great relevance, at a meeting on 12 December 2001 he provided such information and also produced written statements by his doctor on his consumption of medicines and the possibility of reducing it. The first investigation was discontinued on 17 December 2001. On 25 December 2001 followed a renewed call of concern to the child welfare services ( Barnevernvakten ) in Stavanger. The boyfriend of J.'s sister had called to inform that J.had perceived the applicant as being drugged when speaking to him on the phone that day. Immediately, on the same day, the child welfare services carried out an unannounced visit to the applicant's home and left after 10 minutes, having found no evidence of intoxication. In a report of 10 January 2002 by the Hinna District Office concerning the first investigation, it was noted inter alia that the applicant's doctor considered his consumption of medication too high and that it was desirable to reduce it, while the applicant, following his lawyer's advice, was unwilling to come forward with information on the subject. No instances of intoxication had been found. The report concluded that the children did not live in a situation that was covered by any of the grounds for compulsory taking into public care under section 4-12 of the 1992 Act, although the boys' care situation had been made insecure and unpredictable by the parents' conflict. The report also contained an assessment of the conduct of the mother, who appeared very assertive and was using inter alia the child welfare services in her “warfare” against the applicant, to the boys' detriment. Second investigation by the child welfare services On 28 February 2002, after a new report of concern, this time by a named third party, Mr R, who was a police officer, the child welfare services at Hillevåg opened a new investigation (hereinafter referred to as “the second investigation”). The source referred to an incident which he had observed while off duty near an ice hockey arena on 16 February 2002, when the applicant allegedly had difficulty standing on his feet, due to intoxication. A trainer had held him under his arm and had led him out. As the applicant wished to drive home his car keys had been taken from him. The applicant's mother had then come to collect him. Mr R worked at the local police station and as he had returned to work he had found a message stating that somebody had called to report that the applicant had driven his children by car while in a state of intoxication. Mr R had the impression that the applicant often had turned up at the sports hall in a visibly intoxicated state. Three other sources, two of which were anonymous, had reported respectively on 4, 14 and 25 March 2002 incidents of intoxication and, one of them, that the applicant was violent and threatening and mentioned rumours about drugs abuse. The anonymous report of 25 March 2002 recounted an incident when the applicant had been so intoxicated that he did not manage to pass the sliding door in the sports hall and that, when his oldest son assisted him through the door, the applicant hit after him. Some adults in the hall had commented that this was not the first time. The managers of the sports club had called the applicant's mother who came to collect the children. The source was worried about the children's situation. The report of 4 March 2002 had been submitted by another named third party, Mr O, recounting that some time before Christmas his son and the latter's mother had gone to the applicant's home to fetch some money. When they arrived the applicant had fallen over due to intoxication. They had then brought the applicant's eldest son with them to the cinema. Since the applicant was not capable of fetching the youngest son in the kindergarten, they had called the applicant's mother and informed her. When Mr O. heard about this incident he was worried for the applicant's children. On 21 March 2002 the child welfare authorities communicated to the applicant through his lawyer two of the above reports of concern, namely those of 28 February and 14 March 2002, with an invitation to the applicant for a meeting to discuss the allegations. In response to the above, the applicant's lawyer pointed out that the reports of concern were of the same type as those that had prompted the investigation which had been opened in August 2001 and had been concluded. He explained to the authorities that the applicant had not been under the influence of drugs but had fainted in a state of malaise; he had not had breakfast that day and had been under duress because of the proceedings against him. According to the applicant, who refused his cooperation in the investigation, the allegations against him must have originated from persons within his ex-wife's entourage and were part of her attempt to obtain the daily care of the children. On 11 April 2002 the Hillevåg District Office, with reference to an investigation conducted under section 4-3 of the 1992 Act, addressed requests for information to several instances, stating that the Office had reason to fear that the applicant's children lived in a situation such as described in section 4-12 of the Act. The requests, which set out specific questions capable of shedding light on the children's situation, were addressed to the applicant's doctor, who was also the doctor of his two sons, the school of the eldest son, the kindergarten of the youngest son, and the police, who were reminded of their obligation under section 6-4(3) to disclose such information to the child welfare services. In addition, the applicant's mother was invited to the Office for an interview. By a letter also dated 11 April 2002 (but posted on 16 April 2002) to the applicant's lawyer, the Hillevåg District Office, enclosing copies of the above mentioned requests, informed him of the commencement of the second investigation. It referred to the Hinna District Office's report of 10 January 2002 stating that the extent of the applicant's use of tablets was unclear and that he, on the advice of his lawyer, had refused to comment. It had been the Office's intention to inform about these requests at a meeting on 4 April 2002, but since the applicant and his lawyer had objected to meet, they had been informed in writing. The Office added that a meeting with the applicant was scheduled for 14 May 2002, by which date they expected to have received the information requested from the above instances. The Hillevåg District Office received information from the doctor, the school, the kindergarten and the police. The applicant's mother declined to meet for an interview. His ex-wife gave an interview by telephone from <COUNTRY>. The investigation was concluded by a report from the child welfare services at the Hillevåg District, dated 18 July 2002, which stated that they were worried that the applicant might abuse intoxicating substances (“ rusmisbruk ”), were unsure as to how much his ADHD diagnosis affected his ability to assume care and were uncertain as to his capability to provide the children with a sufficiently good up-bringing and about his potential for development. It recommended support measures under section 4-4 of the 1992 Act, to be evaluated by the end of a six month period. The measures included assistance such as designating a support home which the children could visit, providing the applicant with guidance on how to master his ADHD illness and problems related to drug taking, while at the same time assuming responsibility as a carer. The applicant disputes this assessment, which had not been based on any further unannounced visits to his home, nor on information provided by his doctor, but on circumstantial evidence collected outside the home. Judicial proceedings brought by the applicant in relation to the second investigation In the meantime, on 23 April 2002, the applicant had instituted proceedings before the Stavanger City Court to obtain a declaratory judgment ( fastsettelsesdom ), maintaining that there was no legal basis for conducting an investigation against him. He also requested an interlocutory injunction suspending the investigation pending judgment in the case. The City Court found that it was not possible to bring the matter before the courts and on 14 May 2002 dismissed ( avviste ) the case. It observed that the matter could not be viewed as a “decision” taken in the exercise of official duties in the sense of Article 435(1)(1) of the Code of Civil Procedure. As interpreted in light of the requirement of “legal interest” in Article 54, this term clearly referred to “individual decisions” (“ enkeltvedtak ”). On an appeal by the applicant, the Gulating High Court, by 2 votes to 1, upheld the City Court's decision, by a judgment of 25 June 2002. The majority considered that a decision taken by the child welfare services to carry out an investigation was not decisive for the applicant's rights and obligations and thus was not a “decision” in the sense of section 2 of the Public Administration Act. The applicant did not have a legal interest in the case under Article 54 of the Code of Civil Procedure. A decision to implement an investigation was only a step in the child welfare services' preparation of the case and thus was not decisive for his rights and obligations. Nor was there any conflict with Articles 6, 8 and 13 of the Convention. The minority found that the appeal should be admitted for review ( fremmet ), considering that the applicant had a legal interest in having it judicially established whether the authorities had unjustifiably interfered with his right to respect for private life. The applicant sought to appeal against the High Court's decision by challenging its application of the law. He maintained that from Articles 54 and 435 of the Code of Civil Procedure and Articles 6, 8 and 13 of the Convention, it followed that he should have a right to have the lawfulness of the investigation carried out by Stavanger Municipality reviewed by the City Court. He requested the Supreme Court to quash the High Court's decision of 25 June 2002 which upheld the City Court's dismissal of his case and to refer the case back to the City Court for examination. On 21 August 2002 the Appeals Selection Committee of the Supreme Court decided that the case as a whole should be determined by the Supreme Court, under section 6 (2) of the Supreme Court Act 1926 ( Høyesterettsloven - lov om forandring i lovgivningen om Høyesterett, 25 June 1926 no. 2). On the same date the President of the Supreme Court decided that it should hear the parties according to the rules applicable to ordinary appeals (ibid.). In his letter to the applicant's lawyer of 3 September 2002, notifying the applicant of the above decisions, the Registrar of the Supreme Court pointed out that, having regard to the fact that the case concerned the application of the law, it was assumed not to be necessary (to commission a first instance court) to collect evidence for use by the Supreme Court. Should the parties nonetheless be of the view that this was necessary, their representatives should by 16 September 2002 give an account of what evidence should be collected and how. Within the same time limit the representatives of the parties were requested to confer about possible dates for oral hearing and shortly thereafter the Supreme Court would contact them to fix the hearing date. The rapporteur judge had estimated that the hearing would last for one day and the representatives of the parties were invited to express a view on the presumed duration of the hearing. The child welfare services of Hillevåg submitted their concluding report of 18 July 2002. Otherwise the state of the evidence was the same as before the lower courts. Neither of the parties had responded to the above-mentioned communication of 3 September 2002 by asking that additional evidence to be collected for use by the Supreme Court. After holding an oral hearing, at which both parties were legally represented, the Supreme Court in a decision of 4 March 2003 upheld, by four votes to one, the High Court's dismissal of the case. On behalf of the majority, Mr Justice Mitsem gave the following reasons: “(23) By way of introduction, I would point out that this case concerns a further interlocutory appeal, in which the jurisdiction of this court in principle is limited pursuant to Article 404 of the Code of Civil Procedure. In this instance, however, the Appeals Committee, and now the Supreme Court, has full jurisdiction, since the lawsuit filed by [the applicant] was summarily dismissed 'because the case is not a matter for the courts of law', see Article 404 (1)(1). (24) I will first consider the suit in relation to the conditions for filing a lawsuit under traditional Norwegian procedural law, set out in Article 54 of the Code of Civil Procedure. Under this provision, it is a procedural condition that the suit shall concern 'a legal relationship or a right'. Furthermore, there must be a 'legal interest' in having the case decided, which inter alia means that the plaintiff must have an actual need for a judicial clarification. (25) The investigation was opened on 28 February 2002 and had to be carried out as soon as possible and within three, alternatively six, months at the latest, see section 6-9 (1) of the [1992] Act. The final report is dated 18 July 2002 and was sent to [the applicant's] lawyer on the same day, with notification that the investigation was closed. (26) [The applicant] has contested the fact that the final report represented the end of the investigation. Reference is made to the fact that the report culminated in a recommendation that family assistance be provided in the home, subject to evaluation within six months, so that there was still a 'case' in progress. (27) To this I would comment that the purpose of an investigation, as expressed in section 4-3 of the [1992] Act, is to ascertain whether there is a basis for taking measures pursuant to the Act, and section 6-9 (2), first sentence, states that 'an investigation [pursuant to section 4-3] is regarded as completed when the child welfare services have made an administrative decision to implement measures or it has been decided to drop the case.' Thus such measures do not represent a continuation of the investigation, but its conclusion. (28) Since the investigation has been closed, it is difficult to see how a judicial decision could have any legal significance for [the applicant]. It will not affect the implementation of the voluntary assistance measures recommended in the final report. Nor will it make any difference as regards the right to initiate a possible investigation in the future, based on new circumstances, or to decide to implement other measures pursuant to the Child Welfare Act, if warranted by circumstances. (29) According to precedent it is undoubtedly the case that the requisite legal interest may cease to exist after legal proceedings have been instituted, with the consequence that the case must then be summarily dismissed. This may even occur - as in the present case – after judicial remedies have been pursued against a decision made in a court of second instance. (30) I would add that a decision to carry out an investigation pursuant to section 4-3 of the [1992] Act is not an individual decision in the sense of the Public Administration Act. The same applies to the measures initiated in the course of the investigation, in this instance the obtaining of information pursuant to section 6-4 of the Child Welfare Act. As a general rule, it is not possible to make the lawfulness of such procedural steps the object of a separate lawsuit pursuant to Article 54 of the Code of Civil Procedure. However, any errors made at this stage could be significant in a lawsuit brought against any administrative decision that might be taken, and could possibly also form the basis for a claim for damages. (31) [The applicant] has undoubtedly experienced the investigation as a strain, also because it was started shortly after the end of a prior investigation, and any judgment in his favour might seem like redress. However, this is not sufficient either to justify a legal interest, see Norsk Retstidende (Supreme Court Legal Reports - “ Rt ”)-2001-1123. (32) Accordingly, I conclude that under traditional Norwegian procedural law [the applicant 's] suit had to be summarily dismissed. (33) [The applicant] has claimed that a summary dismissal of the case will constitute a breach of the right of access to a court under Article 6 § 1 of the Convention in cases relating to 'civil rights'. (34) I find it unnecessary to express a view on whether a demand that the child welfare services shall not make an investigation concerns a 'civil right' at all. In any event, the Convention accepts that national law must have some latitude to impose limitations on the right of access to a court. However, this is conditional on the limitations having a legitimate purpose, and a proportionality criterion also applies, which means that there must be a reasonable relationship between the purpose of the limitations and the effects they have. Finally, the limitations must not have such far-reaching consequences that the very essence of the right to a court is impaired, see the judgment of the European Court in the case of O the <COUNTRY> (1987), Series A No. 120, which states that the right to a court cannot be precluded in more substantial disputes. (35) In the Rt -2001-1123, the first voting judge points out that 'sparing society – both courts of law and involved parties – lawsuits which, even if they were to succeed, would have no significance for the plaintiff's legal position', constitutes a legitimate aim, and that the proportionality requirement does not militate against maintaining the requirement of a 'legal interest' either. I concur with this. Nor can I see either that the limitation on the right to bring special lawsuits regarding the type of procedural decisions at issue in this case affects the essence of Article 6 § (36) In my opinion, therefore, the summary dismissal of [the applicant 's] suit does not represent a breach of Article 6 § (37) Accordingly, I shall move on to the question of whether the suit must be allowed in pursuance of Article 13 of the Convention ... . [The applicant] has asserted that the investigation was a breach of Article 8 of the Convention regarding the 'right to respect for his private and family life'. The parties are in agreement that in this case there existed no right to lodge an appeal to a superior administrative body, in connection with either the opening of the investigation or the specific steps that were subsequently taken. Thus any review provided for in Article 13 must be carried out by a court of law. (38) The Convention was incorporated into Norwegian law by the Human Rights Act of 21 May 1999 No. 30 and, in the event of a conflict, takes precedence over provisions in other legislation, see section This means, as stated on page 54, first column, of Proposition No. 3 to the Odelsting [the larger division of Parliaemnt] (1998-1999), that 'should a situation arise, after incorporation, where ... Article 13 ... requires the right to a judicial hearing whereas no corresponding right is provided by Article 54 of the Code of Civil Procedure, a judicial hearing must be allowed'. (39) It is my understanding that the Municipality acknowledges that the grounds that would lead to a summary dismissal of [the applicant's] lawsuit pursuant to Article 54 of the Code of Civil Procedure are not tenable pursuant to Article 13 of the Convention. I concur. Pursuant to Article 13, the question of whether Article 8 has been breached must be regarded as a legal issue and be made the object of a declaratory suit [ fastsettelssøksmål ], even if the breach has ceased to exist. The doubt as regards the right to demand a judgment for non-compliance with a convention that existed in Rt-1994-1244, the so-called 'Women's Prison' case, must be regarded as having been dispelled by the adoption of the Human Rights Act and the rule of precedence set out in section 3 of the said Act. (40) Nevertheless, under the case-law of the European Court, Article 13 only requires the availability of a remedy before a national authority if there is a reasonable ground for claiming that the Convention has been breached; there must be an arguable claim. This criterion is interpreted in accordance with Article 35 § 3 of the Convention, pursuant to which a complaint to the Strasbourg Court shall be summarily dismissed if it is 'manifestly ill-founded'; see inter alia paragraph 33 of the judgment in Powell and Rayner the <COUNTRY> (1990), Series A No. 172. (41) Since the right to take legal action pursuant to Article 54 of the Code of Civil Procedure has been extended as a result of the incorporation of the European Convention on Human Rights, there is reason to consider whether the limitations developed in the Convention case-law should also apply in Norwegian law. The question will then be whether the courts shall summarily dismiss a suit which, after a preliminary substantive assessment, is considered to be clearly unfounded. In that event, it is not a question of limiting rights that are already protected under Norwegian law, but of the degree to which they are to be extended. Thus no conflict with Article 53 of the Convention can arise either, as [the applicant] has argued. (42) In the continuation of the passage I cited above from Proposition No. 3 (1998-1999) to the Odelsting , it is stated that '[the Ministry] will however obtain an assessment ... of whether the Code of Civil Procedure should be amended so that it is clearly evident from the statute when lawsuits concerning alleged breaches of human rights conventions are to be allowed and when they are to be summarily dismissed', and that the question was to be considered by the committee that was to be appointed to examine the Code of Civil Procedure with a view to its revision. The report of the Code of Civil Procedure Committee recommends that no substantive 'screening system' should be introduced for lawsuits concerning possible breaches of the Convention; see Norges Offentlige Utredninger (Official Norwegian Report – “ NOU” 2001:32 page 201. On the other hand, the Committee points out that lawsuits that clearly cannot succeed could be decided by means of a proposed simplified court hearing. No such possibility exists in our current procedural system, but it will, if it is introduced as proposed by the Committee, largely satisfy the considerations regarding the saving of time and costs in legal proceedings that have been advanced as the main arguments in favour of a screening system. (43) How the issue should be resolved in the current dispute seems uncertain. I find it natural to take as the point of departure the fact that Article 54 of the Code of Civil Procedure establishes by statute – while at the same time limits – the right to bring any declaratory suit before a court. In the absence of statutory regulation of the issue, it is my view that the relaxation of the statutory conditions for bringing a lawsuit that follows from the Convention cannot in principle go beyond what would be a direct consequence of the Convention and its incorporation into Norwegian law. Admittedly, some might object that it is foreign to Norwegian law to assess the merits of the claim in order to decide whether the case shall be heard. But the question concerns a right to take legal action that until now has not had a clear basis in Norwegian law. (44) I would add that filing a suit such as the one at hand, which has aimed at halting the investigations of the child welfare services, could entail considerable disadvantages. It will draw resources away from the real functions of the child welfare services, and might make its work more difficult in situations where it is necessary to react without undue delay. This reinforces the need for a simple, rapid assessment of whether there is any substance at all in the plaintiff's claim. This concern will be met by applying the Convention's own rule of summary dismissal if the claim is not arguable. (45) The consequence of my view is that the question of summary dismissal will depend on whether the suit, based on Article 8 of the Convention, must be considered manifestly ill-founded. (46) I would add, however, that I have not thereby concluded whether the threshold for summary dismissal should be as low as that applied by the European Court of Human Rights. As emphasized by Jørgen Aall in Tidsskrift for Rettsvitenskap (Journal of Jurisprudence) 1988, page 90, there are good reasons why national courts should follow a less stringent practice as regards summary dismissal. However, as will be shown below, the present case is in no way on the borderline in that respect. (47) ... (48) I find that the investigation constituted an interference with [the applicant's] right to respect for his private and family life under Article 8 § 1 of the Convention. On the other hand, however, I find it clear that it was an interference that was justified under the exception clause in Article 8 § (49) The decision to make an investigation is subject to a statutory condition - there must be 'reasonable cause to assume that circumstances prevail which may provide a basis for measures'; see section 4-3 of the [1992] Act. However, as stressed by the Municipality, this criterion is linked to a professional assessment by the child welfare services, and the threshold for initiating an investigation is meant to be low. In Proposition No. 44 (1991-1992) to the Odelsting , it is also emphasized that interests of privacy will often have to yield to the child's best interests; see pages 29 and 107. (50) The investigation in dispute was opened on 28 February 2002. One and a half months earlier, a first investigation had been completed, in which it had been concluded that the children 'are living in an insecure and unpredictable care situation'. When a new child concern report was received on 28 February 2002, under section 4-2 of the [1992] Act the child welfare services had to consider whether it should be followed up by investigations pursuant to section 4-(51) [The applicant] has maintained with vigour that this child concern report – which had given cause to suspect that he was intoxicated when he was with the children and misused pills, which was also the basis for the previous investigation – was unwarranted. I offer no opinion on this question, but cannot see it otherwise than that the child welfare services had to carry out an investigation pursuant to section 4-3, with a view to obtaining confirmation or disproving that there was cause for concern in regard to the children's care situation. The fact that there was an objective basis for initiating investigations was otherwise corroborated by new child concern reports and information from the school and day care centre indicating that the children had special care needs which it was doubtful that [the applicant] could fulfil. Finally, this was also confirmed by the assistance measures recommended by the child welfare services in their final report. (52) In relation to Article 8 of the Convention it is particularly important to consider the specific steps that were taken during the investigation. In this case, it was a question of obtaining information pursuant to section 6-4 (2) and (3) and section 4-12 of the [1992] Act. (53) I find it clear that it cannot be claimed that any breach of the [the 1992] Act or the Convention had occurred. Admittedly, in its final report, the child welfare services found no basis for making an administrative decision under section 4-However, in order to collect information it was sufficient that there was a substantiated suspicion that the children were in a situation such as described in the said provision. I would add that [the applicant's] unwillingness to cooperate with the child welfare services was also unlikely to calm their basically justified uneasiness about the children's situation. (54) Nor is there any ground to claim that the investigation did not pursue legitimate purposes or was unnecessary. In this respect it suffices to refer to the European Commission of Human Right's decision of inadmissiblity of 22 May 1995 in the case of Andersson <COUNTRY> , in which precisely the children's best interest were emphasised. The Commission stressed that the obtaining of information, as in the present case, was proportionate to the legitimate purpose and an interference of limited extent, since the public administration was also subject to a duty of confidentiality. Finally, it was also emphasized as a factor that the person whom the interference concerned was kept informed as to the information that was disclosed, as was done in [the applicant's] case. (55) Accordingly, it is my view that point 1 of the operative part of the High Court's decision must be upheld. (56) The interlocutory appeal has not succeeded. However, the case has raised hitherto unsettled questions concerning the relationship between traditional Norwegian law and the European Convention on Human Rights. In my view, the circumstances must be said to be so special that [the applicant] should not be ordered to pay costs either before the High Court or the Supreme Court. The Supreme Court hearing has also been conducted in accordance with the rules for appeals, with the consequences that this has for the amount of the costs. Otherwise as regards the Supreme Court, the legal representatives were appointed at public expense .... The dissenting member, Mr Justice Tjomsland, stated: “(58) It is my opinion that the lawsuit must be admitted to the City Court. (59) I agree with the first voting judge that the suit would have had to be summarily dismissed in accordance with 'traditional Norwegian procedural law'. I also agree that such a dismissal would not constitute a breach of the right of access to a court guaranteed by Article 6 § 1of the Convention. (60) The first voting judge expresses the opinion that, as a consequence of incorporation of the Convention into Norwegian law by the Human Rights Act of 21 May 1999 No. 30, a claim may be made for a declaratory judgment asserting that there has been a breach of the Convention. I concur in this opinion. The view taken by the majority as regards this question in Rt-1994-1244, the 'Women's Prison' case, cannot be maintained following the adoption of the Human Rights Act. Given the relatively limited requirements that can now be made in this respect for this type of suit, I also find that [the applicant] has a sufficient actual interest in the suit; see NOU 2001:32 Rett på sak (Straight to the Point), pp. 201-202. (61) On the other hand, I do not agree with the first voting judge that a suit regarded as manifestly unfounded must be summarily dismissed. Once it has been accepted that a suit may be brought with a claim for a declaratory judgment asserting a breach of the Convention, the way in which such a claim should be dealt with depends, in my view, on Norwegian rules of procedure. It is therefore not decisive that the screening system, which according to the first voting judge should be applied, will not be contrary to the Convention. Under Norwegian procedural law, the assessment of whether the conditions for filing suit have been satisfied is based on the plaintiff's submissions with regard to the claim he or she is putting forward. If the claim – in the event manifestly ill-founded – cannot succeed, judgment must be given for the respondent after a hearing on the merits of the claim. In my view, it would be contrary to this principle to procedurally dismiss on a non-statutory basis manifestly unfounded lawsuits regarding breaches of the Convention after a summary examination on the merits, cf. the majority vote in Rt-1994-1244, NOU 2001:32 Rett på sak , p. 201, and Schei: Tvistemålsloven med kommentarer (The Code of Civil Procedure, with commentary), 2nd edition, p. 270. (62) I cannot see that the provision in Article 35 § 3 of the Convention prescribing that a complaint to the European Court of Human Rights shall be summarily dismissed after a summary examination [...] if it is manifestly ill-founded can be transposed, on a non-statutory basis, as a procedural condition to lawsuits concerning breaches of the Convention that are brought before Norwegian courts. I would also note that the considerations that serve as grounds for the various dismissal provisions in Article 35 of the Convention may appear in a different light as regards lawsuits brought before national courts. A rule on summary dismissal of the kind at issue in this instance will, in my view, give rise to several procedural problems, concerning notably the legal force of the orders. My objections to such an arrangement also hold good if a rule of summary dismissal departing from Article 35 § 3 were to apply on a non-statutory basis, for instance if one were to apply a less stringent practice of summary dismissal than that of the European Court or if the scope of the summary dismissal rule were to be limited in another discretionary manner. (63) I agree with the first voting judge that filing a suit like the one at hand could give rise to significant disadvantages for the work of the child welfare services. However, such suits are – in my view – a consequence of the fact that it has now been made permissible to file suit complaining of a Convention breach irrespective of whether a judgment of this nature would entail specific legal effects for the plaintiff. In my view, an attempt must be made to reduce the problems that arise in this connection by adopting rules regarding simplified judicial hearings as has been proposed by the Civil Procedure Committee. In this connection, I wish to comment that the purpose of the screening system in question here will in actual fact be to introduce, on a non-statutory basis, a simplified hearing on the merits of the claims covered by the arrangement.”

Finland, Sweden, United Kingdom

6

The proceedings on the merits On 27 July 1963 the applicants brought proceedings against Mr B. in the Reggio di Calabria District Court seeking damages for breach of a contract of sale relating to a flat under construction. In a provisionally enforceable judgment of 5 July 1968, deposited in the registry on 21 September 1968, the District Court assessed the damage at 5 million Italian lire (ITL) and confirmed the charging order which the applicants had been granted on 19 June 1964. This judgment was upheld by the Reggio di Calabria Court of Appeal on 7 June 1969. In a judgment of 12 March 1973, deposited in the registry on 16 July of the same year, the Court of Cassation dismissed an appeal on points of law by Mr B. B. The enforcement proceedings On 28 November 1969 Mr and Mrs Zappia served Mr B. with a notice to comply, but this produced no effect; a second notice, served on 21 July 1977, was no more successful. Accordingly, on 5 December 1977, they applied to the judge responsible for enforcement proceedings to have the property covered by the charging order (see paragraph 7 above) sold so that they could be paid the sum due together with interest and the costs of the enforcement proceedings. On 9 May 1980 the judge set down the first hearing for 10 December 1980, but it did not take place until 11 March 1981 because he had been transferred. Of the next eight hearings (from 13 May 1981 to 24 November 1982) two were adjourned at the request of both parties, one without a reason being given, one at the defendant's request, two because the defendant's lawyer was absent, one because the parties had failed to appear and the last by the court of its own motion. On 23 March 1983 another creditor intervened in the proceedings. On 23 May 1984, after three further adjournments, the applicants asked for the property covered by the charging order to be valued. On 27 March 1985, after an adjournment ordered by the court of its own motion, the judge appointed an expert, who was sworn in on 25 September 1985. The hearings listed for 26 February and 25 June 1986 had to be adjourned, as the expert had not filed his report within the sixty days he had been given. The hearing set down for 26 November 1986 could not take place because the judge had been transferred. On 28 December 1988 the applicants asked for a date to be fixed for the sale. On 9 January 1989 the judge to whom the case had now been assigned, noting that the property concerned was subject to other charging orders, ordered the registry to add all the documents concerning these orders to the file (Article 561 of the Code of Civil Procedure). As the registry had failed to comply with this instruction, the hearings listed for 24 May 1989, 18 December 1989, 3 June 1991 and 4 May 1992 had to be adjourned. The hearing set down for 1 October 1991 had also been adjourned to enable the parties to examine the expert's report. On 5 October 1992, noting that the registry had at last complied with the order of 9 January 1989, the applicants' lawyer asked for a date to be fixed for the sale. Two hearings later, on 31 December 1992, the judge ordered the same expert to revalue the property subject to the charging order, the creditors to inform another creditor of the existence of the charging order and the registry to take the necessary steps for public notification of the sale of the property. He then directed the parties to appear at a hearing on 5 July 1993. As the registry had not served this order on the parties, the hearing in question was adjourned, first until 27 September 1993 and then, for the same reason, until 7 March 1994. The hearing listed for 7 November 1994 was adjourned because the registry staff were unable to find the case file. The hearing scheduled for 5 December 1994 was adjourned until 5 June 1995 because the expert's supplementary report had not yet been filed. The hearing listed for 5 June 1995 was adjourned by the court of its own motion because the judge had been transferred. According to a certificate issued by the Reggio di Calabria District Court on 26 January 1996, submitted to the Court by the applicants on 6 February, the expert has still not submitted his report. Relevant domestic law In its report of 6 July 1995 the Commission gives a brief summary of Italian legislation governing enforcement proceedings. In particular, the Code of Civil Procedure provides: Article 474 "Enforcement can be effected only where there is a valid authority to execute in relation to an obligation which is certain, the quantum of which has been fixed and which has fallen due. The following shall constitute valid authority to execute: (1) Judgments and measures to which the law expressly accords executory effect; ..." Article 479 "Save where the law provides otherwise, enforcement must be preceded by service of the authority to execute and the notice to comply ..." Article 567 "Where the period [ten days] laid down in Article 501 has expired, the creditor who applied for the charging order and any creditor who has joined the proceedings and is in possession of authority to execute may apply for the property charged to be sold ..." Article 598 "If the proposal [for dividing the proceeds of the sale of the property] is approved, or if an agreement is reached between all the parties, this shall be formally minuted in the case file and the judge responsible for the enforcement proceedings shall order that the various shares be paid out; otherwise [the judge shall prepare the case for trial]."

Following the institution of bankruptcy proceedings before the Osijek Commercial Court ( Trgovački sud u Osijeku ) against the Županjska Bank, Županja, on 3 May 1999, creditors were invited to lodge their claims against the said bank. Pursuant to that invitation, the applicant company lodged its claim. On 9 September 1999 a notice was placed on the court’s public noticeboard informing all interested persons that a list of claims to be examined in the bankruptcy proceedings could be consulted in the court’s registry. The list included a claim submitted on behalf of the State Agency for the Insurance of Savings Deposits ( Državna agencija za osiguranje štednih uloga – hereinafter the “Agency”). The applicant company’s representative was present at an examination hearing ( ispitno ročište ) held on 15 September 1999 where the bankruptcy administrator assigned to the case ( stečajni upravitelj ) was to accept or reject each of the claims. No objections were raised as to the accepted claims. The relevant parts of the transcript of the hearing read as follows: “It is established that the following creditors’ representatives are present at today’s hearing: ... attorney Dražen Štivić for LB Interfinanz <COUNTRY> ... Maja Špoljarić for DABA [short for Državna agencija za osiguranje štednih uloga ] ... After having announced the subject matter of the case, the president of the bankruptcy panel informs the creditors in attendance that a list of creditors’ claims available to everyone exists and after that [the creditors] agree that there is no need to write down individual claims since the amount of each claim is going to be announced orally by the bankruptcy administrator and the creditors will be able to comment on it. ... After that the claims are examined under sections 155 and 157 of the Bankruptcy Act and the bankruptcy administrator presents the amounts of the claims of the creditors in attendance in the order established in the list of claims. ... At the bankruptcy president’s inquiry whether the creditors wish to contest any of the claims examined today no objections are raised. ... The hearing is concluded. A decision on the creditors’ claims examined today will be issued in writing.” Immediately afterwards a report hearing was also held ( izvještajno ročište ), where the applicant company’s representative was appointed as a representative of all foreign creditors in the board of creditors. The Agency, being the creditor claiming the highest sum, was also included in the board of creditors, a body designed to represent the creditors’ interests in the bankruptcy proceedings. In the subsequent course of the proceedings two meetings of the board of creditors were held, on 27 September 1999 and 20 June 2000 respectively, the applicant company’s representative being present at both. A decision concerning the claims examined at the hearing of 15 September 1999 was subsequently issued where, inter alia , the claim submitted on behalf of the Agency was accepted. In its submission of 26 February 2001 the applicant company opposed the claim filed by the Agency, arguing that although the Agency’s claim had been listed in the decision of 15 September 1999 it had not been subject to examination at the hearing held on the same day as the claim in question had not yet become due. On 25 April 2001 the Osijek Commercial Court declared the applicant company’s submission inadmissible. It held that creditors’ claims in the context of bankruptcy proceedings could only be opposed at the examination hearing and that the contested claim had been accepted by the bankruptcy administrator as stated in her decision of 15 September 1999. On 10 May 2001 the applicant company appealed against the above decision contending that during the examination hearing held on 15 September 1999 the bankruptcy administrator had not stated whether she accepted or rejected the Agency’s claim and that therefore it had had no opportunity of contesting that claim. On 12 June 2001 the High Commercial Court ( Visoki trgovački sud Republike Hrvatske ) dismissed the appeal, finding that the contested claim had been accepted in the bankruptcy administrator’s decision of 15 September 1999 and that the applicant company could have filed an appeal against that decision. Since the applicant company had failed to file a timely appeal it had no right to oppose the contested claim at a later stage. The applicant company then filed a constitutional complaint whereby it argued that the Agency’s claim had not been subject to examination at the hearing held on 15 September 1999 as it had not yet become due at that time. Furthermore, it contended that the decision of 15 September 1999 had not been served on it. On 14 May 2004 the Constitutional Court dismissed the applicant’s complaint, finding that it did not concern the merits of the case. The applicant company submitted a letter of the Osijek Municipal Court of 5 February 2007 whereby it replied to its enquiry and stated that the decision of 15 September 1999 had been filed in the court’s registry the same day and kept there for a further fifteen days. In their further letter of 8 February 2007 it was stated that the former bankruptcy administrator in the proceedings had informed the court that a notice had been posted on the court’s public noticeboard informing all interested parties that the decision of 15 September 1999 could be consulted in the court’s registry within the following fifteen days. There was no mention of the date when this notice had been posted on the court’s noticeboard and for how long it had stayed there. The decision itself had not been posted on the noticeboard because it had comprised eighty-two pages.

Switzerland

The first applicant (“R.P.”), the second applicant (“A.P.”), the third applicant (“P.”) and the fourth applicant (“B.P.”) were born in 1985, 1982, 1950 and 1941 respectively. All four applicants are British citizens who currently live in Nottingham, England. A.P., P. and B.P. are, respectively, R.P.’s brother, mother and father. On 7 May 2006 R.P.’s daughter (“K.P.”) was born prematurely at 27 weeks’ gestation. The birth was unexpected as R.P. had not known that she was pregnant. R.P. was not in a relationship with K.P.’s father and he played no further part in the proceedings. As a consequence of her premature birth, K.P. suffered from many serious medical conditions. She had serious chronic lung disease (broncho-pulmonary dysplasia), which rendered her oxygen-dependent, she had bleeding on both sides of her brain (bilateral intraventricular haemorrhage), she was immuno-suppressed and therefore very susceptible to infection, and she had a congenital heart defect which was repaired by surgery on 6 June 2006. Although her health improved as she developed, she continued to require skilled and labour-intensive day-to-day care. She was regarded as at high risk of cot death and initially required feeding through a nasal-gastric tube. It was observed that from K.P.’s birth until 22 August 2006 R.P. was only visiting K.P. for 1-2 hours a day. She had to be prompted to visit for longer periods and it was noted that she could not complete basic care tasks without prompting and support. A multi-agency meeting took place on 22 August 2006, at which the hospital drew up a schedule of tasks which R.P. would need to demonstrate she could satisfactorily complete before K.P. could safely be discharged into her care. A “core assessment” prepared at this time recorded that R.P. had previously been involved with the local authority’s mental health services and was believed to have learning disabilities; that her relationship with A.P., P. and B.P. fluctuated, with allegations having been made of violence and aggression; that there were concerns about her relationship with K.P.’s father; and that P. and B.P. were unsuitable to care for K.P. because of poor household conditions and concerns about family dynamics. On 30 August 2006 a social worker met with R.P., P. and B.P. to discuss the local authority’s concerns as to the care of K.P. It was noted that R.P. had difficulty understanding and articulating the nature and extent of K.P.’s health needs and refused to accept that she needed help to care properly for her. However, she did agree to participate in a Parenting Assessment Manual (“PAM”) Assessment, which was a tool designed to assess parents with learning disabilities. The assessment, which was completed on 1 September 2006, concluded that R.P. struggled to complete care tasks for R.P. and demonstrated little understanding of her care needs. On 8 September 2006 care proceedings were commenced in relation to K.P. At this stage the aim of the care plan was to identify how the local authority could keep K.P. alive and safe in a home environment while R.P. was given the opportunity to develop her care skills. On 15 September 2006 an interim care order was made in favour of the local authority and on 23 November 2006 K.P. was discharged from hospital into the care of foster parents. R.P. instructed a solicitor (“S.”) to represent her in the care proceedings. Both S.and her very experienced counsel developed serious concerns that R.P. was unable to understand the advice she was being given. Pursuant to a court order, S.and the local authority jointly instructed a consultant clinical psychologist (“H.J.”) to assess R.P. Prior to being assessed, attendance notes from both the counsel and S.indicate that they informed R.P. that the purpose of the assessment was to determine whether or not she had capacity to provide instruction and, if she did not, the Official Solicitor would have to be appointed to act on her behalf. In her report H.J. found that R.P. had a significant learning disability and concluded: “Because of the difficulties [RP] has in understanding, processing and recalling information, I believe that she will find it very difficult to understand the advice given by her solicitor. She will not be able to make informed decisions on the basis of this advice, particularly when this involved anticipating possible outcomes. It would be appropriate for the Official Solicitor to become involved.” On 26 October 2006 S.wrote to the Official Solicitor to advise him of the contents of H.J.’s report. On 31 October 2006 the Official Solicitor indicated that he would consent to act on behalf of R.P. if invited to do so. On 7 November 2006 Nottingham County Court invited the Official Solicitor to act for R.P. and he formally consented to act as her guardian ad litem on 11 December 2006. In accordance with his usual practice, a case worker (“LM”) wrote to S.to confirm that she was to be instructed by the Official Solicitor on behalf of R.P. She enclosed with the letter a further letter and leaflet to be given to R.P. The letter stated that: “You may already know that on 7 November 2006 the Official Solicitor was asked to act as your guardian ad litem . This means that he will instruct your solicitor for you. He can only do this if a doctor or the court has decided that you cannot do so yourself. In your case, HJ completed a report dated 23 October 2006 which shows that you have a learning disability. If your condition improves and HJ or another doctor says that you can manage on your own, the Official Solicitor will of course step down and no longer act for you. Your solicitor will keep in touch with you, let you know what is happening and tell the Official Solicitor how you feel about things... The Official Solicitor will consider the evidence of all the people involved as well as your wishes and views before he files a statement at court on your behalf. He will do his best to protect your interests but must, of course, bear in mind what is best for KP. If you are not happy with the way in which your case is conducted you should first discuss the matter with your solicitor or with me. If you are still not satisfied you can write to the complaints officer...” The content of the leaflet given to R.P. is set out in full below: “ The Official Solicitor Who he is, and what he does. WHO IS THE OFFICIAL SOLICITOR? Alistair Pitblado is the Official Solicitor to the Supreme Court. It is his job to make decisions on behalf of people who are unable to represent themselves in Civil and Family Proceedings (the client). WHY THE OFFICIAL SOLICITOR ACTS IN A CASE The Official Solicitor agrees to act either because the client is under the age of 18, or because the client’s doctor does not think that they can cope with making decisions about their court case. Legal matters can be difficult to understand and very stressful and the Official Solicitor is here to protect the client’s interests. HOW WILL THE OFFICIAL SOLICITOR HELP? The Official Solicitor makes decisions about the court case such as whether to bring, defend or settle a claim. We will arrange legal representation in court for the client where he considers this necessary. He will usually ask a firm of solicitors to help him with the case. The Official Solicitor can only make decisions about the questions arising in the court case. He cannot make any other decisions for the client. WHO CAN I SPEAK TO ABOUT THIS CASE? Your solicitor should be the primary contact. The Official Solicitor has assistants who help him deal with every case. These assistants are called case managers. The case manager assigned to your case will provide you with details of the solicitors they have appointed on your behalf. WILL THE CLIENT BE CONSULTED? Shortly after he agrees to act the Official Solicitor will usually instruct a firm of solicitors as his solicitors, either the solicitors already instructed by the client or new solicitors identified by the case manager. Such solicitors, or a senior solicitor within the firm, should be a member of the Law Society Children Panel or the Resolution (formerly SFLA) Family Panel. The instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager. Fees and Charges In the vast majority of cases, the Official Solicitor acts in the capacity of Litigation/Next Friend and instructs outside solicitors. The Official Solicitor does not make any charge for acting in the capacity of Litigation/Next Friend. Where the legal work in a case is conducted in-house, the Official Solicitor will, where appropriate, seek to recover his costs (or in medical cases there is a practice whereby he is entitled to half his costs) using an hourly charging rate. We will write to you separately with further details if this applies in your case. COMPLAINTS If you are dissatisfied with the way your case is conducted you should first discuss the matter either with the external solicitor, or with your case manager. If you remain dissatisfied you may write to the Complaints Officer, Official Solicitor’s Office, 81 Chancery Lane WC2A 1DD.” On 19 December 2006 Nottingham County Court directed that H.J. be instructed to prepare a second report considering the propriety of the teaching methods envisaged by the local authority in its parenting assessment. H.J.’s second report, dated 2 March 2007, noted that the teaching methods and materials would “in general be appropriate” and emphasised that simple language, direct instructions and repetition would be needed, along with immediate feedback. On 2 March 2007 a parenting capacity assessment was produced in respect of R.P. The report noted that R.P. had demonstrated commitment to the assessment process and an ability to retain and carry out basic tasks. However, social workers were concerned that R.P. had expressed views of a racist nature, that she sometimes seemed immature and attention-seeking, that she was overly preoccupied with her own health concerns, and that she spoke very negatively about the local authority’s professionals. Reports from R.P.’s contact sessions with K.P. indicated that R.P. showed some signs of improvement, demonstrating some ability to remember what she had been shown and to repeat tasks. However, even after months of regular contact and support R.P. still, on occasion, needed reminding about and prompting to perform basic tasks, especially when something unexpected happened. They also indicated that R.P. occasionally demonstrated a failure to put K.P.’s needs before her own and a lack of awareness of K.P.’s current and future needs. Her attitude towards social workers was also noted to be aggressive, uncooperative and occasionally violent. Consequently, there were concerns about R.P.’s ability and willingness to work with local authority professionals and put K.P.’s needs first. This was of particular concern in light of K.P.’s need for high levels of support. In May 2007 H.J. was asked to produce a third report. The report, dated 2 June 2007, primarily concerned the risks posed by R.P. to K.P. and R.P.’s ability to care for K.P. H.J. was also asked to comment on R.P.’s litigation capacity. She noted: “1 As I have indicated previously RP has a significant learning disability, and she will always need a high level of support in caring for KP . If she were not receiving this support she would pose a high level of risk to KP’s well-being, which is not due to any desire on her part to hurt KP, but to her limitations, which are too extensive to allow her to parent KP successfully on her own. 2 If she were receiving a high level of support this risk could be reduced. The level of support which would be needed for this to happen would be for another competent adult to be present at all times, to prompt and assist RP in her care for KP. Essentially this means that RP would need to be living with a partner or family member who could appropriately provide this level of support. ... ... ... 3 Having read all the work which has been done with RP and having carefully considered my assessment of her, it is my view that there is no further work which could be undertaken with RP which would increase her ability to care for KP in any significant way. ... ... ... 1 As I indicated earlier RP could only care for KP if she had a high level of support. I cannot perceive anything in her circumstances which suggests to me that such a support network is available, and without this no progress can be made towards rehabilitation. ... ... ... 1 RP would need 24 hour support, and within this it would be realistic to expect her to assist with KP’s care but not take sole responsibility for this. This would continue to be the case throughout KP’s childhood. If this could be achieved in a natural environment, such as a family, then it might be suitable as a long term prospect, as long as KP had a consistent identified care giver within that arrangement. ... ... ... 1 RP does not have the capacity to give informed consent to a placement order. She cannot really understand the proceedings except at a very basic level.” On 11 July 2007 the local authority completed a further core assessment. The conclusion was that: “The opinion of all the agencies involved with KP’s care in a position to make an informed decision regarding RP’s ability to parent KP is clear. Without a very high level of continuous support and supervision, RP does not have the skills to enable her to successfully parent KP. RP has consistently demonstrated by her behaviour that she does not wish to work in partnership with the agencies who will continue to be involved in KP’s care throughout her childhood. Therefore, we need to look for alternative permanent carers. Maternal grandparents have put themselves forward to be assessed and this is in the process of being conducted. However, the local authority have a number of concerns in respect of their living conditions, RP’s upbringing and the influence that RP still has upon them and how this would impact upon KP if she were to be placed in their care. Although the local authority do not wish to pre-empt the outcome of the initial sessions with the maternal grandparents, there are a number of concerns regarding their interaction and relationship with RP and their own parenting skills. The local authority at this time believe it is in KP’s best interest to be placed for adoption and the matter will come before the adoption panel on 19 July 2007. The local authority will urgently review this if the outcome of the maternal grandparents’ assessment proves positive”. The local authority filed its final care plan on 12 July 2007. That care plan recommended adoption outside the family and it issued proceedings seeking a placement order under section 21 of the Children’s Act 2002. The Official Solicitor consented to act on behalf of R.P. in the placement proceedings as well as in the care proceedings. The application for a placement order was then consolidated with the care proceedings and listed for hearing before a judge. On 6 August 2007 the local authority filed a kinship assessment of P. and B.P. The report indicated that there had been referrals to the local authority concerning P.’s and B.P.’s care of R.P. and A.P. It further noted that P. and B.P. were unable to control R.P. or manage her behaviour and that they had also intermittently displayed hostility and suspicion towards the local authority. In view of these facts, the local authority concluded that it could not support the maternal grandparents as carers for K.P. On 24 August 2007 a further kinship assessment was filed in respect of A.P. The local authority considered that he was unlikely to have the capacity fully to understand or to meet K.P.’s welfare needs and therefore could not support him as a carer. In a statement to the court dated 17 August 2007, the Official Solicitor indicated that R.P. was not in a position to consent or refuse her consent to the placement order and as her litigation friend he was unable to oppose the making of the care order or the placement order. However, he also indicated R.P.’s opposition to the orders sought by the local authority, her belief that K.P. should be returned to her care or the care of her family, and her belief that the local authority had not given her a chance to acquire the skills necessary to care for K.P. In a pre-hearing review R.P. agreed with S.and counsel that she would not give oral evidence at the hearing but that her wishes would be conveyed to the court by counsel. The hearing took place on 29 August 2007. R.P. was represented throughout by experienced counsel and her views were made known to the court. At the conclusion of the hearing, the judge made a care order, dispensed with R.P.’s consent to the placement order and made a placement order. R.P. applied for permission to appeal to the Court of Appeal and also made an application in the County Court to revoke the placement order. The County Court proceedings were adjourned pending the outcome of the proceedings before the Court of Appeal, which took place in March 2008. The Official Solicitor was notified of the appeal proceedings. He wrote to R.P., informing her of the possibility of free legal representation through the Bar Pro Bono Unit (“the Unit”). When R.P. did not pursue this, the Official Solicitor arranged for the Unit to consider her case. Specialist counsel was appointed and made available to represent R.P. at the hearing. Although R.P. declined his services, he attended the hearing in case R.P. changed her mind. She did not change her mind and instead was assisted in the proceedings by A.P. and Mr John Hemming MP, who acted as her McKenzie friends. In a statement to the Court of Appeal in advance of the hearing, the Official Solicitor set out his standard working practice. He indicated that: “If there is a conflict in the evidence relating to an adult party’s capacity to conduct the proceedings then I will not accept appointment unless or until that conflict is resolved either by the experts arriving at a consensus, or by determination of the court. I will return to this issue below. ... ... ... The solicitor, however, remains the primary point of contact for the protected party. My case worker relies on the solicitor to ensure the protected party is involved, so far as is possible, and is informed about the progression of the proceedings, and for communication of the protected party’s ascertainable views, wishes and feelings with regard to the matters at issue. Whilst the solicitor may not take instructions from the protected party I regard the maintenance of personal contact between the solicitor and the protected party during the case as important, to ensure that proper information is provided and to afford the protected party the opportunity to express any concerns about issues raised, or information provided in the proceedings. I expect any concerns raised to be properly considered and communicated to my case worker. My case worker will consider the protected party’s views and wishes on all relevant points but where those views and wishes run contrary to the legal advice received as to the management and progression of the case, it is unlikely that I will prefer the protected party’s views over that advice, as it would not be in the protected party’s interests that I do so. ... ... ... I am not necessarily involved in the investigation of capacity unless specifically directed to investigate by the court (although my staff are available to offer guidance with regard to the relevant test, if so requested). The evidence as to lack of litigation capacity may therefore be in the form of a medical or psychological report or by way of a report in the form of my standard certificate. The evidence is generally from either a psychiatrist or (in the case of learning disability or acquired brain injury) from a psychologist. In a small number of cases it will be from a general practitioner. In a minority of cases it may be from another clinical specialist such as a neurologist or geriatrician. In the alternative the court may have made a determination, on the existing evidence, that the person concerned is a ‘protected party’ within the meaning of the rules. If the evidence on capacity to conduct the proceedings is ambiguous, or conflicting, then the Divisional Manager will request further clarification from the person who has conducted the assessment, or refer back to the court for a determination of the capacity issue. If during the course of the case the solicitor advises the case worker that the protected party may have recovered capacity, the standard instructions provide that the solicitor must obtain further evidence on this point. If there is evidence that the protected party has recovered capacity, then I will make an application to the court for my discharge. It is of course always open to the protected party at any time during my appointment to apply for my discharge, if of the view that the evidence as to capacity is open to challenge. Similarly if a person comes forward as willing to act in substitution for myself, then an application may be made to substitute for me as litigation friend. My discharge or substitution as litigation friend is for the court to decide. If my case worker is informed that the protected party asserts his or her own capacity to conduct the proceedings and disputes the existing evidence, then the protected party would be invited to agree to undergo further assessment - for example, through referral to his or her general practitioner or other NHS referral. If the protected party refuses to undergo further assessment or seek further evidence, I have, of course, no power to compel this. At the hearing R.P. claimed that there had been a violation of her rights under Article 6 § 1 of the Convention because, inter alia , she had not been informed that the Official Solicitor would be representing her until after the hearing; the involvement of the Official Solicitor was unlawful as she had the capacity to instruct her own solicitor; the clinical psychologist had failed to apply the correct test in assessing capacity, namely the test identified in the Court of Appeal decision of Masterman-Lister ( Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889 ; Masterman-Lister v Jewell and another [2003] EWCA Civ 70); and finally, if she lacked capacity, a family member should have been appointed as her litigation friend. In a judgment dated 8 May 2008, the court found that R.P. was fully informed of the involvement of the Official Solicitor and the nature of his role; the clinical psychologist correctly assessed R.P.’s capacity by reference to the Masterman-Lister test, and R.P.’s family members would not have been suitable litigation friends as they had also put themselves forward as carers for K.P. With regard to the merits of R.P.’s case, the court found that the local authority had done what it could to facilitate the return of K.P. to R.P.’s care and had not simply dismissed this possibility out of hand. The available evidence indicated, however, that R.P.’s significant learning disability prevented her from acquiring the necessary skills to provide K.P. with the care that she needed and this was exacerbated by her increasing unwillingness to co-operate with social workers. The court therefore concluded that the Official Solicitor was right to concede that the care and placement orders were in K.P.’s best interests and the judge was right to make the orders. Accordingly, it held that there had been no violation of R.P.’s rights under Article 6 § 1 of the Convention. R.P. applied for leave to appeal to the House of Lords but leave was refused on 22 July 2008. While the Court of Appeal proceedings were ongoing, R.P. issued an application for leave to apply to revoke the contact order. The application was refused on 7 August 2008 and on 22 October 2008 she was refused leave to appeal to the Court of Appeal. On 19 August 2008 R.P. issued an application for more frequent contact with K.P. On receiving notice of the application, the Official Solicitor wrote to the court to say that the question of R.P.’s capacity needed to be decided in the context of the contact application. At a hearing on 27 January 2009, an expert report was produced which indicated that R.P. had capacity in relation to the contact proceedings. However, on 15 May 2009 the application for contact orders was refused and R.P. was refused leave to appeal. In addition, a further application for leave to revoke the placement order was refused and the court ordered that in future R.P. could only apply for leave to revoke the placement order if she could put forward a change of circumstances since the date of the decision. On 23 June 2009 R.P. applied for permission to appeal the refusal to grant her leave to apply to revoke the placement order. Permission was refused on 8 October 2009. On 24 June 2009 she issued an application for permission to proceed with a claim for judicial review, pleading that the local authority was acting unlawfully and unreasonably by proceeding with plans for the adoption of K.P. whilst proceedings were pending before the European Court of Human Rights. Permission was refused on 12 August 2009. On 7 December 2009 R.P. made a further claim for judicial review in respect of the adoption plan but permission was refused on 14 January 2011. R.P. subsequently made a further application for leave to apply to discharge the placement order. On 10 February 2010 the application for leave was refused and R.P. was refused permission to appeal. In the context of those proceedings, the judge noted that “the mother has a sufficient grasp of what she wants to achieve to put forward her case with assistance so that imposing upon her a litigation friend would be quite inappropriate”. On 1 March 2010 K.P. was placed with prospective adopters, who submitted an application for an adoption order in November 2010. An adoption order was granted by the County Court on 14 April 2011 and R.P.’s request for leave to appeal was refused by the High Court. R.P. has subsequently lodged an application for leave to appeal to the Court of Appeal out of time. That application was dismissed on 15 December 2011.

She works as a deputy head of the Tomsk Regional Hospital. On 25 November 2000 the applicant asked the Kirovskiy District police department to institute criminal proceedings against her former husband, Mr Ch., complaining that he had assaulted her. She provided a police investigator with a certificate from the Tomsk Town Hospital no. According to that certificate, on 25 November 2000 the applicant presented herself at the hospital, where she was examined and diagnosed with injuries to the soft tissues of the head. The certificate also stated that the applicant did not have concussion. Two days later a forensic medical expert examined the applicant and issued a report which, in the relevant part, read as follows: “On the day of the examination, on 27 November 2000, [the applicant] has: two bruises on the face, [and] an injury to the soft tissues on the left side of the parietal tuber. As it follows from medical documents, from 29 November to 16 December 2000 [the applicant] underwent treatment in the neurological department of the Tomsk Regional Hospital; following her dismissal from the hospital she underwent outpatient treatment, consulting a therapist until 23 December 2000 in respect of her diagnosis: “concussion”. The concussion, bruises on the face, the injury to the soft tissues of the head sustained by [the applicant] were caused by blunt firm objects and are considered to have caused “minor health damage” requiring treatment for no more than twenty-one days.... It cannot be excluded that those injuries could have been caused in the period indicated by [the applicant]”. On 15 December 2000 the Kirovskiy District Prosecutor instituted criminal proceedings, finding as follows: “On 25 November 2000 [the applicant] applied to the Kirovskiy District police department seeking institution of criminal proceedings against her husband, Mr Ch., on the ground that he had injured her on 24 November 2000, at 30 p., in their place of residence... I see particular social importance in the fact that the injuries were caused by a man to a woman who cannot offer adequate resistance”. On an unspecified date Mr Ch. was committed to stand trial before the Kirovskiy District Court of Tomsk. The District Court held several hearings at which it heard the applicant, Mr Ch. and a number of witnesses and examined documentary evidence, including two reports by forensic medical experts. The applicant insisted on her description of events as given to the police and prosecution authorities. Mr Ch. disputed the accusations, denying that he had even visited the applicant on the day of the alleged assault. He claimed that he had visited his female friend, Ms P., on that day and spent the night at her house. Ms P. confirmed Mr Ch.’s statement in open court. The defendant’s alibi was also corroborated by his son, who claimed that he had spent the whole day with his father before the latter had gone to see Ms P. One witness testified to having heard the applicant and Mr Ch. arguing in the applicant’s flat on the day of the alleged assault. Two witnesses stated that they had seen the applicant in the evening of the day of the alleged assault or on the following day. The applicant had complained to them that Mr Ch. had beaten her up. One witness, the applicant’s neighbour, stated that the applicant had unsuccessfully asked two persons to lie in court about Mr Ch. assaulting her. The District Court also heard a doctor who had examined the applicant immediately after the alleged assault. The doctor insisted that the applicant had not had concussion. On 15 July 2002 the Kirovskiy District Court found Mr Ch. guilty of assault and sentenced him to six months of correctional labour. The sentence was suspended on probation. The District Court also partly accepted the applicant’s tort action against Mr Ch. and awarded her 4,782.68 Russian roubles (RUB) in compensation for pecuniary damage and RUB 10,000 in compensation for non-pecuniary damage. Mr Ch. and his lawyer appealed, arguing that there was no evidence that the defendant had beaten the applicant. He had an alibi which had been confirmed by two witnesses. However, no witnesses testified to seeing the defendant hitting the applicant. The witnesses also did not state that they had seen the defendant in the vicinity of the applicant’s flat at the alleged time of the assault. Furthermore, the lawyer argued that the presiding judge had unlawfully dismissed his request to step down from the case as the applicant’s lawyer had supervised the presiding judge’s Ph.work. On 12 September 2002 the Tomsk Regional Court reduced the amount of compensation for non-pecuniary damage to RUB 3,000 and upheld the remainder of the judgment, endorsing reasons given by the District Court. On 30 September 2002 Mr Ch. and his lawyer applied to the President of the Tomsk Regional Court, seeking institution of supervisory review proceedings. They once again insisted on the partiality of the presiding judge and the unavailability of evidence proving Mr Ch.’s guilt. In October 2002 the President of the Tomsk Regional Court lodged an application for a supervisory review of the judgment of 15 July 2002, as amended on 12 September 2002. On 1 November 2002 the Registry of the Presidium of the Tomsk Regional Court notified the applicant by letter that a hearing was scheduled for 13 November 2002 at 00 a.The applicant was also invited to study the case file materials and to submit her observations in response to Mr Ch.’s and his lawyer’s applications for a supervisory review. On 10 November 2002 the applicant lodged her written arguments with the Presidium. On 11 December 2002 the Presidium of the Tomsk Regional Court, relying on Article 378 of the RSFSR Code of Criminal Procedure (the CCP), quashed the judgments of 15 July and 12 September 2002 and acquitted Mr Ch. The compensation claims were accordingly dismissed. The Presidium held, inter alia, that the district and regional courts had not established what constituted the criminal conduct under the particular head of the criminal charge, whether it had in fact taken place and whether it had been committed by the former husband. The District and Regional courts, without proper assessment of evidence, presumed that the applicant’s injuries had been caused by her former husband. Thus, Mr Ch.’s guilt was not proven and the principle of presumption of innocence was violated. The applicant and her representative attended the supervisory review hearing and submitted their arguments. On 10 January 2003 the applicant was served with a copy of the judgment of 11 December 2002.

The first applicant in application no. 47039/11 and all eight applicants in application no. 358/12 have or had various types of terminal cancer. The second applicant in application no. 47039/11 is the first applicant’s mother. Four of them succumbed to the illness shortly after lodging their applications (see paragraph 4 above). Having either tried a host of conventional treatments (including surgery, chemotherapy, radiotherapy and hormone therapy), or obtained a medical opinion that such forms of treatment would not work in their respective cases or were not available in <COUNTRY>, all of them approached a private clinic in Sofia, the Medical Centre for Integrative Medicine OOD ( Медицински център Интегративна Медицина ООД ), where they were told about an experimental anti-cancer product (MBVax Coley Fluid) which was being developed by a Canadian company, MBVax Bioscience Inc. According to information from that company, their product has not been authorised in any country, but has been allowed for “compassionate use” (for a definition of that term and comparable terms, see paragraphs 50, 56 and 57 below) in a number of countries (the <COUNTRY>, <COUNTRY>, <COUNTRY>, <COUNTRY>, <COUNTRY>, <COUNTRY>, <COUNTRY>, <COUNTRY>, <COUNTRY>, the <COUNTRY>, and the <COUNTRY> of America). In a letter of 9 January 2011 to the Bulgarian Ministry of Health, the company said that as part of its pre ‑ clinical development of the product it would be willing to provide the product free of charge to the Medical Centre for Integrative Medicine OOD, for use on cancer patients who could no longer benefit from conventional treatments, in return for data on the treatment’s adverse and beneficial effects on each patient. It appears that the Medical Centre for Integrative Medicine OOD has on a number of occasions in the past few years applied for permission to import and use the product, but to no avail. 10 . The parties were in dispute as to whether MBVax Coley Fluid had recently started undergoing clinical trials. The applicants said that, according to data extracted on 18 April 2012 from the website of the <COUNTRY> National Cancer Institute and a website maintained by the <COUNTRY> National Library of Medicine, Mixed Bacteria Vaccine (MBV) was undergoing a phase one clinical trial in <COUNTRY>. On that basis, they argued that it complied with the requirements of Article 83 § 2 of Regulation (EC) no. 726/2004 (see paragraph 50 below). The Government disputed that assertion, and submitted that it was not acceptable to establish the existence of clinical trials in <COUNTRY> through information from websites in the <COUNTRY> of America. The Government further submitted that MBVax Coley Fluid could not be described as a medicinal product within the meaning of the applicable European Union and domestic provisions. The applicants replied that the fact that it had not been authorised did not mean that it was not a medicinal product within the meaning of those provisions. According to the applicants, MBVax Coley Fluid has been used with some success on patients in clinics in <COUNTRY>, <COUNTRY>, the <COUNTRY>, and the <COUNTRY> of America. In support of that assertion the applicants submitted a number of letters and electronic mail messages from medical practitioners. It appears that on 23 July 2011 one of the applicants, Mr Petrov, travelled to <COUNTRY>, where he obtained the product from MBVax Bioscience Inc. free of charge and it was administered to him seven times. However, shortly afterwards he returned to <COUNTRY> because he could no longer afford to pay his living expenses in <COUNTRY> or the fees of the health-care institution which administered the treatment. 14 . Each of the applicants, including Ms Staykova ‑ Petermann, who was acting on behalf of her sick son – applied to the authorities for permission to use MBVax Coley Fluid. In letters of 20 June, 15 July and 1 and 31 August 2011 the Director of the Medicines Executive Agency ( Изпълнителна агенция по лекарствата ), the authority in charge of supervising the quality, safety and efficacy of medicinal products, pointed out that MBVax Coley Fluid was an experimental product not yet authorised or undergoing clinical trials in any country, which meant that it could not be authorised for use in <COUNTRY> under Regulations no. 2 of 2001 (see paragraphs 25 and 26 below). He went on to say that Bulgarian law made no provision for the use of unauthorised medicines outside clinical trials, and that, unlike the situation obtaining in other European countries, in <COUNTRY> compassionate use of unauthorised products was not possible. Under the law of the European Union there was no obligation to have a harmonised approach in this area. In some of the letters the Director added, without going into detail, that the information the applicants had about MBVax Coley Fluid was incorrect. 15 . Some of the applicants appealed to the Minister of Health, who in a letter of 13 July 2011 fully agreed with the position expressed by the Medicines Executive Agency. 16 . Three of the applicants in application no. 358/12 applied to the Ombudsman of the Republic. By letters of 22 July and 4 and 14 September 2011 the Ombudsman also informed them that MBVax Coley Fluid had not been authorised in any country, which meant that the only way in which they could obtain access to it in <COUNTRY> was as part of a clinical trial. 17 . The applicants did not seek judicial review. 18 . On 27 October 2011 the Sofia Regional Health Directorate decided to strike the Medical Centre for Integrative Medicine OOD out of the register of health institutions, on the ground that it was engaging in activities in breach of established medical standards. The clinic sought judicial review of the decision in the Sofia Administrative Court. A hearing was held on 8 December 2011. A second hearing was listed for 24 February 2012, but was adjourned to 14 June, then to 5 October, and then to 12 October 2012. The case is still pending before the Sofia Administrative Court.

Switzerland, United States, Ireland, China, Bulgaria, Germany, Mexico, Bahamas, Israel, United Kingdom, Paraguay, South Africa

8

The applicant is a British citizen and was born on 2 December 1959. Following the death of his mother, he was received into care by the Liverpool City Council under section 1 of the Children Act 1948 ("the 1948 Act") on 1 September 1960. Save for five periods varying between one week and five months when he was discharged to the care of his father, the applicant remained in voluntary care until 18 June 1974. On that date the applicant appeared before the Liverpool Juvenile Court and pleaded guilty to a number of offences including burglary and theft. The court made a care order in respect of him under section 7 of the Children and Young Persons Act 1969. The applicant ceased to be in the care of the Liverpool City Council on attaining the age of majority (18) on 2 December 1977. During the major part of the period while he was in care the applicant was boarded out with various foster parents, subject to the provisions of the Boarding-Out of Children Regulations 1955 ("the 1955 Regulations"). Under the terms of those regulations the local authority was under a duty to keep certain confidential records concerning the applicant and his care (see paragraph 13 below). The applicant contends that he was ill-treated in care, and since his majority has wished to obtain details of where he was kept and by whom and in what conditions in order to be able to help him to overcome his problems and learn about his past. On 9 October 1978, the applicant was permitted by a social worker in the employment of the Liverpool City Council to see the case records relating to him kept by the Social Services Department of the Council in accordance with its statutory duty. He removed those records without the Council’s consent, retaining them in his possession until he returned them to the Social Services Department on 12 October 1978. THE APPLICANT’S CASE RECORDS AND THE APPLICATION FOR DISCOVERY THEREOF It is the practice of the local authorities to keep a case record in respect of every child in care. In respect of children boarded out they were and are under a statutory duty to keep case records by virtue of the 1955 Regulations, which were made under section 14 of the 1948 Act. Regulation 10 of the 1955 Regulations, so far as relevant, provides that: "-(1) A local authority shall compile a case record in respect of - (a) every child boarded out by them; (b) ... (c) ... and the said records shall be kept up-to-date. (2) ... (3) Every case record compiled under this Regulation or a microfilm recording thereof shall be preserved for at least three years after the child to whom it relates has attained the age of eighteen years or has died before attaining that age, and such microfilm recording or, where there is none, such case record shall be open to inspection at all reasonable times by any person duly authorised in that behalf by the Secretary of State." In 1979 the applicant, wishing to bring proceedings against the local authority for damages for negligence, made an application under section 31 of the Administration of Justice Act 1970 ("the 1970 Act") for discovery of the local authority’s case records made during his period in care. Section 31 of the 1970 Act provides, inter alia, that the High Court shall have power to order such disclosure to a person who is likely to be a party to legal proceedings for personal injuries. The application was heard by the High Court on 22 February 1980. The local authority objected to the grant of discovery of the records on the ground that disclosure and production would be contrary to the public interest. The principal contributors to those case records were medical practitioners, school teachers, police and probation officers, social workers, health visitors, foster parents and residential school staff. Their contributions to the case records were treated in the strictest confidence and it was in the interest of the effective conduct of the care system that such records should be as full and frank as possible. If discovery were ordered, the public interest in the proper operation of the child-care service would be jeopardised since the contributors to the records would be reluctant to be frank in their reports in the future. The applicant contended that the case records held by the local authority should be made available to him on the general principles of discovery, for the purpose of his proposed proceedings for personal injuries against the local authority. He further argued that it was also in the public interest that some measure of review of the standard of care provided by a local authority to a child in care be available. The judge did not read the records in question, but balanced the public interest in maintaining an efficient child-care system with the applicant’s private interest in receiving access to his case records for the purpose of the proposed litigation. After referring to the case of Re D (infants) [1970] 1 Weekly Law Reports ("WLR") 599, in which Lord Denning, Master of the Rolls, held that case records compiled pursuant to Regulation 10 of the 1955 Regulations were regarded as private and confidential, he concluded: "I am left in no doubt that it is necessary for the proper functioning of the child care service that the confidentiality of the relevant documents should be preserved. This is a very important service to which the interests - also very important - of the individual must, in my judgment, bow. I have no doubt that the public interest will be better served by refusing discovery and this I do." The applicant appealed from this decision to the Court of Appeal. On 27 June 1980 the Court of Appeal unanimously dismissed the appeal. In the Court of Appeal’s view, the High Court, in its judgment, had correctly balanced the competing interests. It added that the inspection of a document is a course which it is proper for a court to take in certain cases, for example where grave doubt arises and the court cannot properly decide upon which side the balance of public and private interests falls without itself inspecting the documents. However, this was not a case in which such doubt arose as would make it proper for the court itself to inspect the documents. The High Court’s decision was accordingly affirmed and leave to appeal to the House of Lords was refused (Gaskin Liverpool City Council [1980] 1 WLR 1549). RESOLUTIONS OF LIVERPOOL CITY COUNCIL RELATING TO ACCESS TO PERSONAL FILES On 21 October 1980, Liverpool City Council set up the Child Care Records Sub-Committee ("the Sub-Committee") to make recommendations on access to personal social services files and to investigate the allegations relating to the applicant. On 17 June 1982, the Sub-Committee recommended making available case records to ex-clients of the social services, subject to certain safeguards and restrictions relating in particular to medical and police information. As to the applicant, the Sub-Committee viewed with concern the number of placements which he had while in care, and which they recognised could be detrimental to a young person’s development, but found no evidence to suggest that "the officers carried out their duties in other than a caring manner". The applicant was to be allowed access to, and to make photocopies of, his case records, subject however to the exclusion of medical and police information. On 30 June 1982, the Sub-Committee’s recommendations, subject to an amendment which would require the consent of members of the medical profession and police services to be sought to the disclosure of information which they had contributed, were embodied in a resolution of the Social Services Committee. However, Mr Lea, a dissenting member of the Sub-Committee, brought an action challenging the resolution and obtained an interlocutory court order preventing the City Council from implementing it until the trial of the action or until further order. On 26 January 1983, Liverpool City Council passed a further resolution. As regards future records this reiterated the general terms of the resolution of 30 June 1982 and added certain further restrictions to protect information given in confidence and to provide for the non-disclosure of the whole or part of the personal record in particular cases, but as regards information obtained and compiled before 1 March 1983 it was resolved that this should be disclosed only with the consent of the suppliers thereof. Pursuant to this policy the resolution went on to instruct the Council’s officers to contact the various suppliers of information to the Gaskin file immediately with a view to disclosure. The local authority’s officers were, however, ordered not to implement this resolution pending the outcome of the legal action brought by Mr Lea. This action was discontinued on 13 May 1983 and on 29 June the local authority confirmed a further resolution to the effect that the resolution of 26 January would be implemented as from 1 September 1983. On 24 August 1983 the Department of Health and Social Security issued Circular LAC (Local Authority Circular) (83) 14 to local authorities and health authorities pursuant to section 7 of the Local Authority Social Services Act 1970 setting out the principles governing the disclosure of information in social services case records to persons who were the subject of the records. The general policy laid down in paragraph 3 of the circular was that persons receiving personal social services should, subject to adequate safeguards, be able to discover what is said about them in social services records and with certain exceptions should be allowed to have access thereto. Paragraph 5 set out under five headings the reasons for withholding information. These included the protection of third parties who contributed information in confidence, protecting sources of information, and protecting social service department staff’s confidential judgments. Paragraphs 6 to 9 set out in more specific terms the policy governing client access to case records. Paragraph 7 in particular defined the considerations to be weighed on the other side of the balance whenever an application was made for access, the most relevant for the purposes of the present case being that "information shall not be disclosed to the client if derived in confidence from a third party without the consent of the third party". However, it was then provided in paragraph 9 that since existing records had been compiled on the basis that their contents would never be disclosed, material entered in the records prior to the introduction of the new policy should in no event be disclosed without the permission of the contributor of the information. On 31 August 1983, the High Court granted the Attorney General leave to apply for judicial review of the resolution of 26 January 1983 as amended by that of 29 June 1983 on the ground that it went beyond what were considered to be the proper limits and, in particular, omitted certain important safeguards which were contained in Circular LAC (83) Pending the trial of the action an injunction was granted restraining the local authority from implementing the resolution of 26 January 1983. On 9 November 1983, Liverpool City Council confirmed a further resolution of its Social Services Committee of 18 October 1983 setting out certain additional grounds on which information should be withheld. The resolution provided that the information in the applicant’s file should be made available to him if the contributors to the file (or as regards some information the Director of Social Services) consented and that the various contributors of the information contained in the file should be contacted for their permission before the release of that information. Following the passing of this resolution, which was in line with Government Circular LAC (83) 14 (see paragraph 23 above), the Attorney General withdrew his application for judicial review. The applicant’s case record consisted of some 352 documents contributed by 46 persons. On 23 May 1986 copies of 65 documents supplied by 19 persons were sent to the applicant’s solicitors. These were documents whose authors had consented to disclosure to the applicant. The size of each contribution disclosed varied from one letter to numerous letters and reports. Those contributors who refused to waive confidentiality, although not asked to give reasons, stated, inter alia, that third-party interests could be harmed; that the contribution would be of no value if taken out of context; that professional confidence was involved; that it was not the practice to disclose reports to clients; and that too great a period of time had elapsed for a letter or report still to be in the contributor’s recollection. Furthermore, in June 1986, one contributor refused his consent to disclosure on the ground that it would be detrimental to the applicant’s interests. In a letter of 15 July 1986, the Director of Social Services of Liverpool City Council wrote to the applicant’s solicitors in the following terms: "I refer to your letter dated 11 June 1986. I would wish to be as helpful as possible to you, but at the end of the day suspect that we may have genuine differences of opinion. At least I take that to be the implication of the questions you asked. I do not think therefore, that we can take this correspondence further in a profitable way because, as I have said, it is, in the last analysis, for the provider of information, retrospectively collected, to release or refuse to release, in their absolute discretion, the information supplied from the ‘confidential’ embargo originally accorded to it. The reasons for releasing or not releasing are irrelevant whether they are good, bad or indifferent. I regret I do not feel able to help you further." SUBSEQUENT LEGISLATIVE DEVELOPMENTS On 1 April 1989 the Access to Personal Files (Social Services) Regulations 1989 came into force. These regulations, made under the Access to Personal Files Act 1987 and further explained in Local Authority Circular LAC (89) 2, impose upon social services departments a duty to give to any individual access to personal information held concerning him, except for personal health information which originated from a health professional and subject to the exceptions in Regulation This latter provision exempts from the obligation of disclosure, inter alia, any information from which the identity of another individual (other than a social service employee), who has not consented to the disclosure of the information, would be likely to be disclosed or deduced by the individual who is the subject of the information or any other person who is likely to obtain access to it. According to the Government, the effect of Regulation 9 (3) is that, in future, case records will be compiled on the basis that the information contained therein is liable to be disclosed, except in so far as disclosure would be likely to reveal the identity of the informant or another third party. However, by virtue of section 2 (4) of the Access to Personal Files Act 1987, the 1989 Regulations apply only to information recorded after the Regulations came into force, that is, after 1 April 1989. As in the case of Circular LAC (83) 14, which governed the adoption of the resolution mentioned in paragraph 25 above and the subsequent partial release of documents to Mr Gaskin, the Access to Personal Files (Social Services) Regulations 1989 do not have retrospective effect.

Mrs. Julia Glasenapp, who is a German national born in 1947, lives in Cologne. After studying at the Berlin Academy of Fine Art for six years, she there sat her first State examination to become a secondary-school teacher in July 1972 (Erste Staatsprüfung für das Amt des Studienrats). In September 1972, she applied to the Land of North Rhine-Westphalia to be admitted to do her teaching practice (Vorbereitungsdienst für das Lehramt). The appropriate authority (Schulkollegium) in the office of the Regierungspräsident (Chief Administrative Officer) in Münster appointed her as a trainee teacher (Studienreferendarin) with effect from 1 December 1972. This gave her the status of temporary civil servant (Beamter auf Widerruf) in the Land education service. On making her application she had signed the following statement: "I am aware that an appointment to a post in the civil service must be annulled if it is brought about by ‘wilful deceit’ (arglistige Täuschung). I am aware that it is taken for granted (als selbstverständlich vorausgesetzt) that candidates for civil-service posts shall not belong or give assistance to any organisation whose activities are directed against the constitutional order or tend to disrupt or imperil the free democratic constitutional system (freiheitliche demokratische Grundordnung), and I am aware that, if any of the activities mentioned ... is not disclosed, the appointment must be regarded as having been brought about by ‘wilful deceit’." In accordance with her wishes, she was appointed to the Goethe High School (Gymnasium) in Dortmund where she completed her training on 31 July 1974. She had passed her second State examination on 24 May and thus had become qualified to teach art and handicrafts (Kunsterziehung und Werken). On 7 May 1974, Mrs. Glasenapp had applied to the appropriate authority in Münster for appointment as a secondary-school teacher (Studienrätin zur Anstellung), with the status of probationary civil servant (Beamtenverhältnis auf Probe), as soon as her teaching practice was over. When making her application she had signed the following declaration: "On the basis of the briefing I have been given (Belehrung) I hereby expressly declare that I accept the principles of the free democratic constitutional system within the meaning of the Basic Law and that I am prepared at all times and by my every word and deed to bear witness to (bekennen) and to uphold <this> system. I expressly state that I do not support any action (Bestrebungen) directed against <this> system ... or any of its fundamental principles, and in particular that I am not a member of an organisation actively opposed to those principles. I am aware that any breach of these duties of service and loyalty (Dienst- und Treuepflichten) would lead to my dismissal (Entfernung aus dem Dienst)." The information preceding the declaration on the signed form explained, among other things, the meaning of the expression "free democratic constitutional system" as defined by the Federal Constitutional Court (Bundesverfassungsgericht) in its judgments of 23 October 1952 and 17 August 1956. On this point the document stated: "The fundamental principles of this system include: respect for human rights as defined in the Basic Law, in particular the right to life and free development of the personality; the sovereignty of the people, the separation of powers, the Government’s responsibility to Parliament; the principle that administrative acts are governed by the rule of law, the independence of the courts, the plurality of political parties; equal opportunity for all political parties; the right to found an opposition and to contend with those in power, in accordance with the Constitution." The form added that it was incompatible with the duties of public servants (Angehörige des öffentlichen Dienstes) to take part in any actions directed against these principles, whether as members of an organisation or otherwise. The next two passages read as follows: "Candidates for civil-service posts may not be appointed if they support activities inimical to the Constitution (verfassungs- feindlich). Disciplinary proceedings for dismissal will be brought against civil servants guilty of such a breach of duty." The legal basis of the declaration signed by the applicant was the North Rhine-Westphalia Civil Servants Act in its version of 6 May 1970. Section 6(1)(2) provides that in order to be appointed a civil servant a candidate must give the guarantee that at all times he or she will uphold the free democratic constitutional system within the meaning of the Basic Law. By virtue of section 55(2), a civil servant must undertake to bear witness to and to uphold this system by his every word and deed. The wording of the declaration - which the relevant Land authorities required every candidate for a post in the civil service to make - corresponded to the directives that the Minister of the Interior in Düsseldorf had drawn up on 21 November 1972 for the implementation of the decree on the employment of extremists in the civil service ("Ministerpräsidenten-Beschluss"); these directives were later amended, on 28 April 1976 and 28 January 1980. The decree on the employment of extremists had been adopted on 28 January 1972 by the Federal Chancellor and the Prime Ministers of the Länder to ensure uniformity of administrative practice in the matter; it reiterates civil servants’ legal duty of loyalty to the free democratic constitutional system and in paragraph 2 provides (Official Gazette - Ministerialblatt - of the Land of North Rhine-Westphalia, 1972, p. 342): "Every case must be examined and decided according to its particular circumstances. Regard must be had in the process to the following principles: Candidates A candidate who engages in activities inimical to the Constitution shall not be appointed to the civil service. If a candidate belongs to an organisation engaging in activities inimical to the Constitution, this fact shall cast doubt on whether he is prepared at all times to uphold the free democratic constitutional system. As a rule this doubt shall be sufficient reason for not appointing him. Civil servants If a civil servant <fails to comply with his duty of loyalty to the Constitution> the appointing authority shall draw the necessary conclusions on the basis of the particular facts established in his case and consider whether grounds exist for dismissing him from the service (Entfernung aus dem Dienst)." German civil servants’ special duty of loyalty to the State and its Constitution has been confirmed and clarified by the Federal Constitutional Court, in particular in a judgment on 22 May 1975 (Entscheidungen des Bundesverfassungsgerichts, vol. 39, pp. 334-391). In accordance with the directives of 21 November 1972, the appropriate authority in Münster asked the Land Minister of the Interior on 11 June 1974 for information about possible extremist activities of Mrs. Glasenapp. On 3 September, the Ministry replied as follows: "From 1970 to 1972, G lived in Berlin in a commune (Kommune) to which members of Maoist Communist organisations belonged. At least four members of the Anti-Imperialist League were living in this commune at the time. The League is a Maoist Communist organisation close to the KPD (German Communist Party). The telephone number of one of the other members of the commune was the ‘contact phone’ for the Zentrale der Westberliner Oberschüler (Centre for West Berlin High School Pupils), a Communist organisation run by the Communist Students’ Association (KSV). Mrs. Glasenapp did not attract attention by activities of her own." A copy of this letter was handed to Mrs. Glasenapp on 19 September 1974 during an interview to which she had been called by the relevant Land authority to discuss the possibility of her appointment as a secondary-school teacher. She stated that she would reply in writing after consulting her lawyer. The latter indicated Mrs. Glasenapp’s position in a letter of 20 September. In his opinion, the Ministry of the Interior obviously did not know of any circumstances which made Mrs. Glasenapp’s attitude towards the free democratic system clear. In her application for appointment she had declared that she was prepared at all times to uphold this system. She was very anxious to point out that she had not lived in a commune in Berlin; between 1970 and 1972 she had lived in a house in which she occupied one of thirteen rooms as a sub-tenant. Her lawyer added that it scarcely accorded with the principles of a State based on the rule of law to use information relating to third persons who had lived in the same building to the detriment of his client. He called on the authority concerned to take a decision within a week, failing which he would take the matter to court. On the same day, the applicant invited representatives of the Dortmund daily newspapers to attend a press conference on 24 September 1974; she wanted to publicise the delay in appointing her and the fact that it was due to doubts not connected directly with her activities but with the place where she had lived. According to her lawyer, the press conference was intended to promote Mrs. Glasenapp’s case (Nachdruck verleihen) by putting the matter before a large section of the public and showing how the decree on the employment of extremists in the civil service was being applied. On 23 September 1974, the relevant authority received the written observations of Mrs. Glasenapp’s lawyer. It considered that any doubts about her had been cleared up, and it accordingly decided to appoint her as a secondary-school teacher with the status of probationary civil servant at the Städtisches Aufbaugymnasium (High School) in Dortmund-Brünninghausen. She was immediately notified of this decision. The very next day, Mrs. Glasenapp took up her duties and was handed her letter of appointment (Ernennungsurkunde). Still on 24 September 1974, the applicant distributed in the school copies of a "personal statement" and of the Minister of the Interior’s letter of 3 September (see paragraph 16 above); during the morning break she discussed with pupils outside the school the decree on the employment of extremists (see paragraph 15 above). Then, accompanied by her lawyer, she held the press conference she had arranged (see paragraph 18 above). The next day, the Westfälische Rundschau, one of the daily newspapers which reported the press conference, published an article which included the following passage: "The art teacher (Kunsterzieherin), who left no doubt that she was neither a member of the KPD nor a Communist sympathiser, added, ‘This clearly demonstrates the need for individual political vigilance to counter the erosion of fundamental democratic rights’." The first part of this sentence prompted Mrs. Glasenapp to write to the paper. As it did not publish her letter she communicated the text to the Teachers’ and Research Workers’ Trade Union (Gewerkschaft für Erziehung und Wissenschaft) and to a number of organisations interested in "the rules prohibiting appointments" ("Berufsverbote"). The letter was published on 2 October by the journal of the KPD, the Rote Fahne, at the end of a short article. It read as follows: "With reference to the article ‘Living under one roof with Communists’ published in the Westfälische Rundschau of 25 September 1974, your sub-editor Hans Leyendecker is using the delay in my appointment as a secondary-school teacher (Studienrätin zur Anstellung) - which was due to unlawful action on the part of the Ministry of the Interior - to indulge in anti-communist propaganda. He interprets my statement ‘I am not a member of the KPD’ as meaning that I dissociate myself from the KPD or from its policies. That is not the case. On the contrary, I pointed out in the discussion that I support the KPD’s policy, e.g. in the north of the city (Nordstadt). I am a member of a committee to set up an international people’s kindergarten. Responsibility for the situation of the children in the north of the city lies with <the> Hoesch <firm> and the Social Democrat city council. The KPD is in fact the only party concerned about the problem. In my opinion, teachers who take an interest in these matters are better teachers than the NPD <German National Democratic Party> candidates in the regional elections (at the Wickede school) or the teachers who beat the children (as we have been told is the case by pupils in the Oesterholz school)." Although it bears the same name, this KPD (which broke up in 1980) was not the same organisation as the former German Communist Party, which was banned by the Federal Constitutional Court on 17 August 1956 (Entscheidungen des Bundesverfassungsgerichts, vol. 5, pp. 85-393; see also the Commission’s decision of 20 July 1957 on the admissibility of application no. 250/57, Yearbook of the Convention, vol. 1, pp. 222-225). Nor should it be confused with the present German Communist Party, the DKP (Deutsche Kommunistische Partei). In October, the Land Ministry of Education (Kultusministerium) and the responsible authority in Münster, on learning of this letter and other publications in the local press relating to Mrs. Glasenapp, considered whether she should be dismissed for "wilful deceit" under section 12(1)(1) of the Land Civil Servants Act. To give her an opportunity to put her case (section 13(2) of the same Act), the responsible authority invited her to an interview, which took place on 4 November. According to the minutes of the interview, the authority told the applicant that the letter published in the Rote Fahne had caused it to consider whether her appointment as a probationary civil servant had been obtained by "wilful deceit" and whether she should be dismissed. She replied that she had written the letter after consulting her lawyer (who was present at the meeting), with whom she had not, however, discussed the exact wording. She added: "I protest against the fact that this letter is being made the subject of an official interview (Dienstgespräch). I believe that the right to publish such a letter is one of my fundamental democratic rights. I have formed this opinion after getting detailed advice from several lawyers. On this matter I should therefore like to confine myself to saying the following: I maintain the declaration in which I said that I was ready at all times to uphold the free democratic system, and likewise my written declaration of 20 September 1974 reaffirming that. I am in no doubt that I have so far complied with this undertaking in my conduct. By writing the letter to the Westfälische Rundschau I wished to point out that the KPD’s work in the north of Dortmund was well conceived and that I therefore supported it (people’s kindergarten). It was not my intention to pass any judgment on the KPD’s programme and I cannot do so now. I am not a member of the KPD. I firmly believe that my criticisms of the Minister of the Interior had no connection with my official duties (Dienstverhältnis) and I therefore do not consider that I have committed a breach of my obligations as a civil servant ..." In answer to a question, Mrs. Glasenapp said she had not sent her letter to the Rote Fahne but distributed it to relatives and acquaintances (Bekannte). As it was of the view that the applicant had not made her attitude towards the KPD’s policies sufficiently clear, the Land authority wrote to her on 6 November 1974 as follows: "So long as you do not certify in writing that you do not support the KPD’s policies we must assume that you do not agree to abide by your declarations of 7 May and 20 September 1974." The authority pointed out that the KPD, according to its own statements published in the Rote Fahne, was trying to overthrow the political system in the Federal Republic of <COUNTRY> by force and that to support its policies was contrary to the duties of a civil servant. The applicant’s lawyer replied on 22 November that, in view of her rights protected by the Basic Law, his client did not consider it necessary to state her views; referring to her written declarations and the interview on 4 November, she requested that a final decision should be taken now, without any investigation of her political opinions; she did not intend to answer such questions. On 4 December 1974, the authority recommended to the Land Ministry of Education that Mrs. Glasenapp should be dismissed for "wilful deceit". The Ministry having signified its agreement on 8 December, the authority dismissed her on 20 January 1975. In its decision, the authority observed that, contrary to her declarations of 7 May and 20 September 1974, the applicant was not prepared to approve or uphold by her conduct the principles of the free democratic constitutional system. As appeared from her letter in the Rote Fahne, Mrs. Glasenapp supported activities directed against that system and its fundamental principles. She had represented herself as favouring a party which worked against that system and whose policy was aimed at overthrowing it in the Federal Republic of <COUNTRY> by force. She had not explained sufficiently clearly the contradictions between the two aforementioned declarations and her letter, which she had not retracted. She had refused to state that she did not support the KPD’s policies. It had therefore to be conceded that she did not intend to abide by her former declarations. She had thus deceived the authority and improperly obtained her appointment, which must therefore be revoked by virtue of section 12(1)(1) of the Civil Servants Act. By virtue of section 14(1) of the Act, the legal effect of the authority’s decision, once it became final, would be that the applicant had at no time enjoyed the status of probationary civil servant (das Beamtenverhältnis von Anfang an nicht bestanden). Mrs. Glasenapp lodged an objection (Widerspruch) on 24 January 1975; she filed her grounds on 28 January. She considered that the decision of 20 January was unlawful because the conditions of section 12(1)(1) of the Land Civil Servants Act were not satisfied. Her letter, published as it was after her declarations of loyalty and after her appointment, might possibly lead one to suppose that she was no longer prepared to uphold the free democratic system, but not that she had deliberately deceived the authority in May and September 1974. She had protested to the contrary at the interview on 4 November 1974. She had not been able to dissociate herself from the KPD’s programme, for the simple reason that she did not know what it was; a responsible person could not be expected to distance herself from the policy of a party whose aims and objectives she did not know. Nor had she declared that she favoured the KPD: her support for the establishment of a kindergarten originally proposed by that party was evidence of her social commitment and not of an attitude of hostility to the Constitution. As her objection had a suspensive effect, she continued to work at the high school. On 30 January 1975, however, the authority ordered the immediate execution of its decision of 20 January (section 80(2) of the Administrative Courts Act (Verwaltungsgerichtsordnung)), as it considered that the applicant’s behaviour at the school made proper teaching impossible. On 5 February, Mrs. Glasenapp applied for a stay of execution but the Gelsenkirchen Administrative Court (Verwaltungsgericht) refused the application eight days later. She entered an appeal (Beschwerde) which the Land Administrative Court of Appeal (Oberverwaltungsgericht) dismissed on 16 June 1975. According to the findings in the judgment, schoolchildren had distributed a tract outside the school on 27 January 1975 describing the applicant as a "victim of the anti-constitutional decree on the employment of extremists in the civil service" and calling on young people to sign a petition for her "reinstatement". At the same time and place, the applicant and a girl pupil had mounted a demonstration with a strip of material covering their mouths, while the girl carried a placard which read: "The submissive civil servant sees nothing, hears nothing and says nothing." Two days later, Mrs. Glasenapp had distributed outside the school a pamphlet issued by a "Committee against the rules prohibiting appointments ...". Furthermore, a woman and three children had tried to hold a demonstration inside the school in favour of the KPD and the applicant; on being removed, they had continued their demonstration outside the building and, according to the headmaster, the applicant had joined them there. Finally, the Court of Appeal found that during break on 30 January Mrs. Glasenapp had discussed her case with a large number of pupils, about a hundred of whom, accompanied by the applicant, had demanded that the headmaster should discuss the question of their teacher’s "suspension" with them. The Land authority rejected her objection on 12 August 1975. It noted in particular that the letter in question could not but be regarded as an expression of support for the KPD. Neither the wording of it nor Mrs. Glasenapp’s attitude left any room for believing that she had simply wished to approve an isolated endeavour by the KPD. Ever since her attention had been drawn to the inconsistency between her declarations of 7 May and 20 September 1974 and her open letter, she had refused to certify in writing - as she had been asked to do on 6 November - that she did not support the KPD. When assessing her declaration in favour of this party, it was of little account that the party was running infant classes which might be desirable from the social point of view; the only relevant consideration was that it was pursuing ends which were contrary to the Constitution. In view of Mrs. Glasenapp’s support of the KPD, her declaration of 20 September (whose importance for her appointment she was not unaware of) was false. She had at that time deliberately deceived the authority. On 15 October 1975, the applicant challenged the decisions of 20 January and 12 August before the Gelsenkirchen Administrative Court. Referring to the grounds of her objection (see paragraph 25 above), she denied having deceived the relevant Land authority and declared that she stood by the statements she had made on 4 November 1974. In answer to the charge that she had failed to repudiate the KPD’s policies, her reply was that she could not do so because she did not know what they were. She had merely praised its work in setting up a kindergarten in north Dortmund. Furthermore, her involvement in this matter dated from August 1974; she could not therefore be accused of wilfully misleading the authority on 7 May 1974. On 19 September 1974, she had been questioned about her accommodation in Berlin when she had been studying there; she had not felt under any obligation to give an account of her support for the kindergarten. If she had wished to deceive the authority, she would not have published her letter. As it was, she had thought that under the constitutional order she had a right to carry on and support legitimate and laudable activities, even if they were encouraged by a party which the Government in power deemed to be opposed to the Constitution. Mrs. Glasenapp supplemented her pleadings on 1 December 1975. She stressed that she did not unreservedly (bedenkenlos) support the KPD; she had merely helped, together with members of that party, to set up a people’s kindergarten in Dortmund. She pointed out that she believed she was entitled under the free democratic constitutional system not to make statements without cause. She was willing to answer questions concerning the KPD’s practical objectives, but it was unreasonable to expect her to inform herself of the party’s aims, then consider whether they were compatible with the Constitution and dissociate herself from them. The Administrative Court dismissed her claim on 29 July 1976, considering that she did not afford the guarantee required by section 6(1)(2) of the Land Civil Servants Act that she would at all times uphold the free democratic constitutional system. It was undisputed and a matter of common knowledge that the former German Communist Party, the KPD banned by the Federal Constitutional Court, together with the present party of the same name - still tolerated in the Federal Republic, apparently for reasons of foreign policy -, and the other communist groups (whether they followed the Moscow line or not) sought to set up the "dictatorship of the proletariat" or the "dictatorship of the working class". Admittedly, some West European Communist parties had recently abandoned the expression "dictatorship" and proclaimed their attachment to democracy, but experience in Eastern Europe showed that this was merely an electoral tactic. Under the Basic Law and the system in the Federal Republic of <COUNTRY>, freedom of each individual citizen and of the State was the highest value to be protected. But it did not exist where Communists were in control. A Communist form of government was incompatible with the Basic Law. A candidate for a civil-service post was clearly not upholding the free democratic system within the meaning of the Basic Law if he belonged to a Communist group. If he was not a member of such an organisation or if his membership could not be proved but he worked for it or for similar ends, he did not afford a guarantee that he would uphold the system. In Mrs. Glasenapp’s case, the Land authority concerned had initially reached the conclusion on the basis of her statements on 7 May and 20 September 1974 that she afforded the necessary guarantee. Her refusal to dissociate herself from the aims of Communism, however, proved that she was not willing to subscribe to the principles of the free democratic system and to uphold them. It was not possible at one and the same time to support the aims of Communism and to support the Basic Law: the one precluded the other. The authority was therefore right subsequently to regard the applicant’s declaration as an admission of support for Communism and its aims. The applicant had admittedly said that she did not know what the policies of the KPD were, but in view of her level of education and the campaign by a section of the press against the decree on the employment of political extremists in the civil service (see paragraph 15 above), she could not be believed. Nor could the court accept her claim that she had supported and wished to support the KPD only in order to establish the kindergarten. Her letter in the Rote Fahne on 2 October 1974 gave the clear impression that she was trying to avoid not being thought of as a Communist. In the most characteristic passage - "That is not the case" - she denied that she was dissociating herself from Communism or its policies. There was nothing to suggest that she did not already approve of the aims of Communism at the time she applied for the appointment. By concealing her true opinions she had deliberately deceived the authority, which was therefore bound to dismiss her under section 12(1)(1) of the Land Civil Servants Act. Mrs. Glasenapp appealed against this judgment on 19 August 1976, filing her grounds of appeal on 13 December 1976 and 13 January 1977. She argued, inter alia, that there was no proof that she had given false information or concealed the real facts and thus deceived the relevant Land authority. As required by the Federal Constitutional Court in such cases (judgment of 22 May 1975 - see paragraph 15 above), it was for the appropriate authority to establish that there had been a specific breach of the duty at all times to uphold the free democratic system. In this connection, the expression of a given conviction could not be taken into account so long as it amounted merely to a criticism of the present state of society or sought to change existing legislation by constitutional means. Even if the impugned letter was regarded as evidence of a lack of loyalty to the Constitution, regard should have been had to the fact that the applicant had not engaged in anti-constitutional activities and that her personal conduct left nothing to be desired. The seriousness of her professions of loyalty could therefore not be doubted; nor could her refusal to dissociate herself from the policies of Communism (which were in any case far from clear, even assuming that one could speak of the "policies of Communism") be doubted or be taken for an anti-constitutional activity, because she was not a member of the KPD and not familiar with its policies. She considered that she could and should support what she felt to be a laudable enterprise, irrespective of what a political party said about it, and that she could do so lawfully, even if her opinion on a particular matter was the same as a Communist’s. In short, the authority had not established that there had been "wilful deceit". Moreover, the judgment had contravened various principles in the Codes of Administrative Procedure and Civil Procedure in that it relied exclusively on the terms of the letter without taking into account the further explanation of their meaning given during the proceedings. Finally, neither the applicant’s conduct in connection with the kindergarten project nor her reaction to the articles in the press could be complained of as anti-constitutional; nor could her refusal to dissociate herself from the policy of the KPD warrant that conclusion if the principles adopted by the Federal Constitutional Court were applied. The Land Administrative Court of Appeal dismissed the appeal on 21 April 1978. It held that the authority was right to consider that the applicant’s appointment had been obtained by "wilful deceit". The declarations of 7 May and 20 September 1974 were not true; they were irreconcilable with the content of the letter. Admittedly, the letter referred to the matter of the kindergarten, but the applicant’s support for the KPD had not stopped there; on the contrary, she had stated that she supported the party’s policies without expressing any reservations. Such support, however, was incompatible with a profession of loyalty to the free democratic system. That was clear from KPD manifestos and the policy statements of some of its leaders: the KPD rejected the parliamentary system enshrined in the Basic Law; its aim was social revolution and, as an avant-garde working-class organisation, it sought to bring about social revolution by force in order to establish the dictatorship of the proletariat. Its objective, as stated in its programme, was "the march towards the revolutionary fusion of the working class and the people, towards destruction of the capitalist system and exploitation, towards the establishment of the absolute power of the working class, towards socialism and the classless society and towards Communism". As the governing class was not prepared to yield to the advancement of the proletariat, it was necessary "to bring it down by using revolutionary force". The ends and means of the KPD accordingly ran counter to essential principles of the free democratic system: the KPD’s first aim was the destruction of the State. It strove to achieve power not by the means afforded by the Constitution but by revolutionary force; the dictatorship of the proletariat, which was its objective, was contrary to the principles of the Basic Law, such as the sovereignty of the people, plurality of political parties, equal opportunity for all political parties and the right to oppose those in power within the limits imposed by the Constitution. Given the contrast between Mrs. Glasenapp’s professions of loyalty and her letter published in the Rote Fahne, it had to be supposed that objectively she had been lying in May and September 1974. Her letter, which was written on her own initiative and not under any pressure, indicated her true position, whereas the need to confirm her allegiance to the Constitution in order to secure her appointment could have led her to make a declaration which was "mere lip service" (Lippenbekenntnis). Furthermore, the applicant was aware that her statements were untrue. Having regard to her level of education, it could be presumed that she had directed her mind to the effects of her letter, which was addressed to at least a section of the public. It was incomprehensible that after having stated publicly and in writing her agreement with the KPD on two matters, she should have claimed to her employing authority (Dienstherr) that she did not know what the KPD’s policies were. In this connection, her behaviour at the interview on 4 November 1974 appeared particularly revealing. If, out of over-eagerness or without thinking, she had included statements in her letter which on mature reflection she no longer entirely approved of, she could easily have rectified the letter. The explanation she offered on this point (see paragraphs 22, 28 and 30 above) was too far removed from the actual wording of her letter. The employing authority was therefore entitled to ask her how she claimed to resolve the conflict; civil servants’ duty of political loyalty required them to dissociate themselves unequivocally from groups which attacked, opposed and defamed the State, its lawful institutions and the existing constitutional system. If Mrs. Glasenapp really was ignorant of the details of the KPD’s policies when she wrote her letter, she could have said so. At the same time she could have admitted that she had gone too far in not wishing to dissociate herself from the party and its policies and in supporting the latter; she could, for example, have said that she was in fact merely engaged in supporting the kindergarten venture. Instead of that, she had given the employing authority a reply not calculated to throw light on the position and she had made no further reply to the substance of the letter which the authority sent her on 6 November 1974. The Court of Appeal drew the conclusion that at least the statements of 20 September 1974, which reiterated those of 7 May, had been knowingly false. The applicant was well aware that her declarations of loyalty to the Constitution were of decisive importance for her appointment as a probationary civil servant. Her appeal must therefore be dismissed. The Court of Appeal refused the applicant leave to apply to the Federal Administrative Court (Bundesverwaltungsgericht) for review on points of law. On 19 June 1978, Mrs. Glasenapp applied to the same Court of Appeal to have the latter decision set aside: she argued that her case raised a question of principle of vital importance for the uniform interpretation and application of the law (Article 132(2)(2) and (3) of the Code of Administrative Procedure). All the decisions in her case had been based on her refusal to dissociate herself from the policy of the KPD. The question was therefore whether it was allowable to draw adverse inferences from such conduct. There were conflicting authorities on the point. Unlike the Court of Appeal, the Augsburg Administrative Court and the Bremen Labour Court of Appeal (Landesarbeitsgericht) - together with most legal writers - considered that it was not permissible to question candidates about their political opinions or their membership of political parties; they inferred therefrom that the relevant authorities could not rely on replies to such questions or on the refusal to reply. When the Court of Appeal found against her on 22 July 1978, Mrs. Glasenapp applied for legal aid to bring an appeal (Beschwerde) in the Federal Administrative Court. That Court refused her application on 11 December 1979 on the grounds that the proposed appeal had insufficient prospects of success. It did not consider it necessary to decide whether the question raised by the applicant involved a matter of principle, because in the instant case it would have been necessary to determine whether a "wilful deceit" had been practised on the relevant authority. In the circumstances, however, the authority had been entitled to ask Mrs. Glasenapp to clarify her position in relation to the KPD; and the Court of Appeal could regard her negative reaction as evidence that in May 1974 she had knowingly made a false statement whose importance for her appointment could not have escaped her. On 8 January 1980, the applicant lodged a constitutional complaint with the Federal Constitutional Court. She relied on Article 33(2) (right of access to the civil service), Article 12(1) (right to free choice of one’s profession), Article 3(3) (non-discrimination) and Article 2(1) (right to free development of the personality) of the Basic Law. She argued that there was no evidence of "wilful deceit". The decisions complained of were all expressly based on her refusal to distance herself from the policies of the KPD. She had, however, clearly dissociated herself from them by pointing out that by her letter she neither had wished nor could have wished to express support for the KPD generally but only for the opening of a people’s kindergarten in north Dortmund. Admittedly, she had not agreed to repudiate the KPD’s policies, but that did not justify drawing unfavourable inferences, in particular because the declaration in question had been made six months before her letter. Such a far-reaching obligation to dissociate oneself from a party’s policies could not exist. In any case, she had not joined the KPD and accordingly she could not judge its programme and aims. In its judgment of 22 May 1975 (see paragraph 15 above), the Constitutional Court had held that membership of a party opposed to the Basic Law was merely one relevant factor when it came to considering an application for a civil-service post; the Court required each case to be considered on its merits. However, it was not admissible to question a candidate about his political opinions or his connections with a party, or to use the answers given to such questions. It also appeared from this judgment and a series of decisions by other courts that even the members of a party whose aims were inimical to the Constitution were not required to disapprove of its objectives in their entirety. This principle should apply a fortiori to non-members. The measure complained of had not taken these considerations into account; in requiring the applicant to disavow the KPD’s policies completely, the authority in question had made an absurd demand and had not complied with the principles laid down in the matter by the courts. Sitting as a panel of three judges, the Federal Constitutional Court decided on 14 July 1980 not to entertain the constitutional complaint, on the ground that it had insufficient prospects of success. In so far as the competent courts had considered that the applicant’s behaviour amounted to "wilful deceit", their assessments and conclusions were not arbitrary. The rule that a civil servant’s appointment must be annulled in such a case was not contrary to the principle of equal access to the civil service (Article 33(2) of the Basic Law). Nor had there been a breach of the other rights claimed by the applicant. Admittedly it was forbidden under Article 3(3) of the Basic Law to prejudice a person on account of his political opinions. That, however, did not mean that deliberately deceptive conduct which misled an appointing authority was protected by the Constitution. Nor did the right secured in Article 12(1) of the Basic Law extend to maintaining rights acquired in such a manner.

Germany

6, 8

The facts of the case may be summarised as follows. In 1965, Mr. Sidney Elmer Golder, a <COUNTRY> citizen born in 1923, was convicted in the <COUNTRY> of robbery with violence and was sentenced to fifteen years’ imprisonment. In 1969, Golder was serving his sentence in Parkhurst Prison on the Isle of Wight. On the evening of 24 October 1969, a serious disturbance occurred in a recreation area of the prison where Golder happened to be. On 25 October, a prison officer, Mr. Laird, who had taken part and been injured in quelling the disturbance, made a statement identifying his assailants, in the course of which he declared: "Frazer was screaming ... and Frape, Noonan and another prisoner whom I know by sight, I think his name is Golder ... were swinging vicious blows at me." On 26 October Golder, together with other prisoners suspected of having participated in the disturbance, was segregated from the main body of prisoners. On 28 and 30 October, Golder was interviewed by police officers. At the second of these interviews he was informed that it had been alleged that he had assaulted a prison officer; he was warned that "the facts would be reported in order that consideration could be given whether or not he would be prosecuted for assaulting a prison officer causing bodily harm". Golder wrote to his Member of Parliament on 25 October and 1 November, and to a Chief Constable on 4 November 1969, about the disturbance of 24 October and the ensuing hardships it had entailed for him; the prison governor stopped these letters since Golder had failed to raise the subject-matter thereof through the authorised channels beforehand. In a second statement, made on 5 November 1969, Laird qualified as follows what he had said earlier: "When I mentioned the prisoner Golder, I said ‘I think it was Golder’, who was present with Frazer, Frape and Noonan, when the three latter were attacking me. "If it was Golder and I certainly remember seeing him in the immediate group who were screaming abuse and generally making a nuisance of themselves, I am not certain that he made an attack on me. "Later when Noonan and Frape grabbed me, Frazer was also present but I cannot remember who the other inmate was, but there were several there one of whom stood out in particular but I cannot put a name to him." On 7 November, another prison officer reported that: "... during the riot of that night I spent the majority of the time in the T.room with the prisoners who were not participating in the disturbance. 740007, Golder was in this room with me and to the best of my knowledge took no part in the riot. His presence with me can be borne out by officer ... who observed us both from the outside." Golder was returned to his ordinary cell the same day. l5. Meanwhile, the prison authorities had been considering the various statements, and on 10 November prepared a list of charges which might be preferred against prisoners, including Golder, for offences against prison discipline. Entries relating thereto were made in Golder’s prison record. No such charge was eventually preferred against him and the entries in his prison record were marked "charges not proceeded with". Those entries were expunged from the prison record in 1971 during the examination of the applicant’s case by the Commission. On 20 March 1970, Golder addressed a petition to the Secretary of State for the Home Department, that is, the Home Secretary. He requested a transfer to some other prison and added: "I understand that a statement wrongly accusing me of participation in the events of 24th October last, made by Officer Laird, is lodged in my prison record. I suspect that it is this wrong statement that has recently prevented my being recommended by the local parole board for parole. "I would respectfully request permission to consult a solicitor with a view to taking civil action for libel in respect of this statement .... Alternatively, I would request that an independent examination of my record be allowed by Mrs. G.Bishop who is magistrate. I would accept her assurance that this statement is not part of my record and be willing to accept then that the libel against me has not materially harmed me except for the two weeks I spent in the separate cells and so civil action would not be then necessary, providing that an apology was given to me for the libel ...." In England the matter of contacts of convicted prisoners with persons outside their place of detention is governed by the Prison Act 1952, as amended and subordinate legislation made under that Act. Section 47, sub-section I, of the Prison Act provides that "the Secretary of State may make rules for the regulation and management of prisoners ... and for the ... treatment ... discipline and control of persons required to be detained ...." The rules made by the Home Secretary in the exercise of this power are the Prison Rules 1964, which were laid before Parliament and have the status of a Statutory Instrument. The relevant provisions concerning communications between prisoners and persons outside prison are contained in Rules 33, 34 and 37 as follows: "Letters and visits generally Rule 33 (1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime in the interests of any persons, impose restrictions, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons. (2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State. ... Personal letters and visits Rule 34 ... (8) A prisoner shall not be entitled under this Rule to communicate with any person in connection with any legal or other business, or with any person other than a relative or friend, except with the leave of the Secretary of State. ... Legal advisers Rule 37 (1) The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer. (2) A prisoner’s legal adviser may, with the leave of the Secretary of State, interview the prisoner in connection with any other legal business in the sight and hearing of an officer." On 6 April 1970, the Home Office directed the prison governor to notify Golder of the reply to his petition of 20 March as follows: "The Secretary of State has fully considered your petition but is not prepared to grant your request for transfer, nor can he find grounds for taking any action in regard to the other matters raised in your petition." Before the Commission, Golder submitted two complaints relating respectively to the stopping of his letters (as mentioned above at paragraph 13) and to the refusal of the Home Secretary to permit him to consult a solicitor. On 30 March 1971, the Commission declared the first complaint inadmissible, as all domestic remedies had not been exhausted, but accepted the second for consideration of the merits under Articles 6 para. 1 and 8 (art. 6-1, art. 8) of the Convention. Golder was released from prison on parole on 12 July 1972. In their report, the Commission expressed the opinion: - unanimously, that Article 6 para. 1 (art. 6-1) guarantees a right of access to the courts; - unanimously, that in Article 6 para. 1 (art. 6-1), whether read alone or together with other Articles of the Convention, there are no inherent limitations on the right of a convicted prisoner to institute proceedings and for this purpose to have unrestricted access to a lawyer; and that consequently the restrictions imposed by the present practice of the <COUNTRY> authorities are inconsistent with Article 6 para. 1 (art. 6-1); - by seven votes to two, that Article 8 para. 1 (art. 8-1) is applicable to the facts of the present case; - that the same facts which constitute a violation of Article 6 para. 1 (art. 6-1) constitute also a violation of Article 8 (art. 8) (by eight votes to one, as explained to the Court by the Principal Delegate on 12 October 1974). The Commission furthermore expressed the opinion that the right of access to the courts guaranteed by Article 6 para. 1 (art. 6-1) is not qualified by the requirement "within a reasonable time". In the application bringing the case before the Court, the Government made objection to this opinion of the Commission but stated in their memorial that they no longer wished to argue the issue. The following final submissions were made to the Court at the oral hearing on 12 October 1974 in the afternoon. - for the Government: "The <COUNTRY> Government respectfully submit to the Court that Article 6 para. 1 (art. 6-1) of the Convention does not confer on the applicant a right of access to the courts, but confers only a right in any proceedings he may institute to a hearing that is fair and in accordance with the other requirements of the paragraph. The Government submit that in consequence the refusal of the <COUNTRY> Government to allow the applicant in this case to consult a lawyer was not a violation of Article 6 (art. 6). In the alternative, if the Court finds that the rights conferred by Article 6 (art. 6) include in general a right of access to courts, then the <COUNTRY> Government submit that the right of access to the courts is not unlimited in the case of persons under detention, and that accordingly the imposing of a reasonable restraint on recourse to the courts by the applicant was permissible in the interest of prison order and discipline, and that the refusal of the <COUNTRY> Government to allow the applicant to consult a lawyer was within the degree of restraint permitted, and therefore did not constitute a violation of Article 6 (art. 6) of the Convention. The <COUNTRY> Government further submit that control over the applicant’s correspondence while he was in prison was a necessary consequence of the deprivation of his liberty, and that the action of the <COUNTRY> Government was therefore not a violation of Article 8 para. 1 (art. 8-1), and that the action of the <COUNTRY> Government in any event fell within the exceptions provided by Article 8 para. 2 (art. 8-2), since the restriction imposed was in accordance with law, and it was within the power of appreciation of the Government to judge that the restriction was necessary in a democratic society for the prevention of disorder or crime. In the light of these submissions, Mr. President, I respectfully ask this honourable Court, on behalf of the <COUNTRY> Government, to hold that the <COUNTRY> Government have not in this case committed a breach of Article 6 (art. 6) or Article 8 (art. 8) of the European Convention on Human Rights and Fundamental Freedoms." - for the Commission: "The questions to which the Court is requested to reply are the following: (1) Does Article 6 para. 1 (art. 6-1) of the European Convention on Human Rights secure to persons desiring to institute civil proceedings a right of access to the courts? (2) If Article 6 para. 1 (art. 6-1) secures such a right of access, are there inherent limitations relating to this right, or its exercise, which apply to the facts of the present case? (3) Can a convicted prisoner who wishes to write to his lawyer in order to institute civil proceedings rely on the protection given in Article 8 (art. 8) of the Convention to respect for correspondence? (4) According to the answers given to the foregoing questions, do the facts of the present case disclose the existence of a violation of Article 6 and of Article 8 (art. 6, art. 8) of the European Convention on Human Rights?"

United Kingdom

Mr Jürg Marquard, Mr Hans-Elias Fröhlich and Mr Marcel Caluzzi are all Swiss nationals. Mr Marquard is a publisher and lives at Zug; he runs Groppera Radio AG and is its statutory representative and sole shareholder. Mr Fröhlich, who is a journalist and an employee of Groppera Radio AG, lives at Thalwil (Canton of Zürich). Mr Caluzzi is likewise employed by the company as a journalist and lives at Cernobbio in <COUNTRY> but also has a home in Lucerne. A. The background to the case The Pizzo Groppera radio station In 1979 an Italian private limited company, Belton s.r., built a radio station on the Pizzo Groppera - a 2,948 m peak in <COUNTRY>, near Campodolcino, six kilometres from the Swiss border - for Groppera Radio’s predecessor, Radio 24 AG (see paragraphs 14-15 below). The station used a 50 kW transmitter and a directional aerial with a gain of about 100 kW, such that the apparent power radiated was of the order of 5,000 kW. Using this transmitter, the most powerful in Europe, the station broadcast to <COUNTRY> over a distance of 200 km to the north-west and thus reached nearly a third of the country’s population, mainly in the Zürich area. The situation from 13 November 1979 to 30 September 1983 From 13 November 1979 to 30 September 1983 the Pizzo Groppera station was managed by Belton s.r.but operated by its owner, Radio 24 AG, a company that Mr Roger Schawinski had set up in order to evade the State broadcasting monopoly in <COUNTRY>. The programmes, which were broadcast on VHF and were wholly financed by Swiss advertisers, were intended for listeners between the ages of 15 and On 7 June 1982 the Federal Council adopted an Ordinance on local radio trials, thereby ending the monopoly of the Swiss Radio Broadcasting Company. Nearly three hundred applications were made for trials of this kind, including one by Radio 24 AG, which wanted to serve the Zürich area. On 20 June 1983 the Federal Council issued thirty-six licences. One of these went to Radio 24 AG, but it was issued on condition that the broadcasts from the Pizzo Groppera should cease after 30 September 1983. Mr Schawinski agreed to this but sold the station on the Pizzo Groppera to Mr Marquard. The situation from 1 October to 31 December 1983 From 1 October 1983 Groppera Radio AG used the Pizzo Groppera station to broadcast, under the name of Sound Radio, a slightly altered schedule to the Zürich area, on the frequency that had been used by Radio These programmes could be received not only by the owners of car radios and other personal sets but also by cable-network companies, which retransmitted them. They consisted of light music, information bulletins, commercials and programmes in which the programme-makers and listeners communicated directly or indirectly with each other by telephone or over the air. Like Radio 24, Sound Radio broadcast only in the Zürich dialect. Swiss local radio stations began broadcasting from 1 November 1983 and attracted a large number of listeners. They came into competition with Sound Radio, mainly because they could finance themselves through advertising, subject to certain conditions. An opinion poll carried out in the Zürich area and published on 1 December 1983 showed that Radio 24 reached 60% of listeners and Sound Radio 12%. B. The proceedings in <COUNTRY> On 17 August 1983 the Federal Council issued an Ordinance relating to the Act governing correspondence by telegraph and telephone ("the 1983 Ordinance") to replace another of 10 December 1973. It came into force on 1 January 1984 and contained general provisions applicable to the licensing scheme. It created a third category of licence for receiving installations - community-antenna installations - which was additional to categories 1 (private receiving) and 2 (public receiving). By Article 78 § 1 (a) of the Ordinance, "A community-antenna licence shall entitle the holder to: (a) operate the local distribution network defined in the licence and rebroadcast by this means radio and television programmes from transmitters which comply with the provisions of the International Telecommunication Convention of 25 October 1973 and the international Radio Regulations and with those of the international conventions and agreements concluded within the International Telecommunication Union; ..." From 1 January 1984 most of the Swiss cable companies ceased to retransmit the programmes put out by Sound Radio. Some of them, however, including the community-antenna co-operative of Maur and the surrounding district (Genossenschaft Gemeinschaftsantennenanlage Maur und Umgebung - "the co-operative"), continued to broadcast them. The administrative proceedings On 21 March 1984 the Zürich area telecommunications office of the national Post and Telecommunications Authority (PTT) informed the co-operative that Groppera Radio AG’s broadcasts, since they did not comply with the international rules in force, were unlawful, so that under Article 78 §§ 1 and 3 of the 1983 Ordinance retransmission was not covered by the community-antenna licence. It added that the co-operative would be committing an offence if it continued to retransmit them, and it required the co-operative to cancel within thirty days all the technical arrangements made for receiving and broadcasting the programmes in question. On 31 July 1984 this order was confirmed by the national head office of the PTT. The judicial proceedings The co-operative and two of its subscribers challenged this decision by bringing an administrative-law appeal in the Federal Court. On 30 August 1984 the Pizzo Groppera transmitter was damaged by lightning. It ceased broadcasting and has never resumed since, although the applicants claimed that the damage was quickly repaired. Later, in an interview published in the Tages-Anzeiger Magazin on 13 December 1986, Mr Marquard acknowledged that he had made an error of business judgment in acquiring the radio station. Groppera Radio AG joined the appeal by filing pleadings on 18 September 1984. It claimed that it too was a victim of the provisions of the 1983 Ordinance concerning community-antenna licences, as the restrictions they imposed considerably reduced the number of its listeners, thereby cutting its revenue and jeopardising its financial survival. On 12 November 1984 the Federal Court informed the parties that it had learned that the Pizzo Groppera transmitter had been destroyed and would apparently not be repaired. As there was no interest in pursuing the proceedings, the court proposed striking out the appeals without taking a decision on the merits ("die Beschwerde ohne Sachentscheid abzuschreiben"). The applicants refused to consent to this. The Federal Court gave judgment on 14 June 1985, after deliberating in public on the same day. It ruled that the appeals were admissible inasmuch as they were directed not against the ban on retransmission itself but against the sanctions imposed by the PTT for disregarding the ban. It went on to dismiss the appeals for the following reasons (translated from German): "The Court can normally only hear an administrative appeal if the appellant has a live (present or future) interest in taking proceedings. If the interest in taking proceedings has ceased to exist, the case becomes purely academic and must not continue unless special circumstances require a decision on the merits, for example where it would otherwise not be possible to give a binding ruling on matters of principle in time ... (a) the Maur community-antenna co-operative and its subscribers have only a contingent interest in taking proceedings, depending on whether Sound Radio is going to resume broadcasting; so long as there are no broadcasts, there is nothing to feed into the cable network. If it is highly unlikely that the broadcasts will be resumed, there is no need to examine the merits of the appeal. Groppera Radio AG claimed to have made all the arrangements necessary for restarting its broadcasts in the event of the present appeal’s being held to have a suspensive effect (or of its succeeding). That statement, however, was unsupported by any evidence, although the burden of proof is on the appellant in this regard and Groppera’s submission is open to serious doubt. The company claimed to have ceased its broadcasts - independently of the consequences of the station’s having been struck by lightning - because of the PTT’s ban on retransmission. Other reasons may have weighed more heavily, however. With the arrival of experimental local radio stations and a third frequency for Radio DRS [Direktion Radio und Fernsehen der deutschen und rätoromanischen Schweiz], the transmitter on the Pizzo Groppera had to face serious competition, including that from Radio 24; the transmitter’s survival is accordingly no doubt in jeopardy irrespective of the ban on retransmission. That being so, Groppera Radio AG’s gratuitous statement that it was ready to resume its activities is not sufficient to prove that the Maur community-antenna co-operative and its subscribers have a live interest in taking proceedings. It follows that there is no need to examine the merits of their appeal. The Court does not need to determine the question whether there might be a live interest if the transmitter resumed or had already resumed its broadcasts, which are incompatible with international telecommunications law - subject to any contrary decision by the Italian courts and, possibly, by an international court of arbitration. (b) For the same reasons there is no need to consider the merits of the appeal brought by Groppera Radio AG. The company cannot plausibly maintain that if its appeal succeeded, it would resume its activities - which have been made impossible, short of new investment, by a storm that occurred after the appeal was brought - and would, furthermore, have the financial means to do so. Moreover, this case is a wholly exceptional one. Transmitters which broadcast in contravention of national or international law cannot usually survive for long. Matters are different as regards the Pizzo Groppera transmitter only because proceedings are still pending in <COUNTRY> and because hitherto none of the means of settling disputes provided for in Article 50 of the International Telecommunication Convention ... has been used. It is unlikely that a second case of this kind will arise, if only because of the doubtful profitability of such transmitters. There is therefore insufficient justification for determining, with an eye to the future, the issues raised by the case, some of which are extremely sensitive. In any case, even if it were to be held that Groppera Radio AG had a possible interest in taking proceedings, its claim to retransmit again, through the co-operative’s cable network, its probably unlawful ... broadcasts, after resuming them, would not deserve the law’s protection." Lastly, the court made an order for costs against Groppera Radio AG since its appeal could not succeed as the company had breached the law by attempting to circumvent a ban on retransmission that had been imposed by the PTT and that, moreover, did not concern it directly. The proceedings in <COUNTRY> From 13 November 1979 onwards Radio 24 (Sound Radio’s predecessor) broadcast to <COUNTRY> from the Pizzo Groppera (see paragraph 12 above). On several occasions it changed its frequency in order to prevent interference with other radio stations. On 21 December 1979, following complaints from the German and Swiss telecommunications authorities, the Italian Ministry of Post and Telecommunications prohibited Belton s.r.(the manager of the station - see paragraph 12 above) from continuing its operations and threatened to put its transmitter out of action. The transmitter closed down on 22 January 1980, was functioning again three days later and then ceased broadcasting on 29 January. Belton s.r.brought proceedings in the Lombardy Regional Administrative Court, which on 11 March 1980 refused an application for a provisional broadcasting licence. On 19 March 1980 the Chiavenna magistrate declared that the closing down of the transmitter was unlawful, and broadcasting resumed on 23 March. On 3 October 1980 the PTT again demanded that the broadcasts should cease. On 11 October a second application (no. 2442/82) was made to the Lombardy Regional Administrative Court, but on 18 November that court refused a stay of execution. On 25 November the Pizzo Groppera transmitter closed down for the third time. On 13 January 1981 the Consiglio di Stato granted an application for a stay of execution pending the proceedings in the Administrative Court, and Radio 24 began broadcasting again on 16 January. In a judgment (no. 1515/81) of 1 October, which was filed at the registry on 4 December 1981, the Administrative Court held that Radio 24 was carrying on its activities in <COUNTRY> unlawfully. The Pizzo Groppera station could not be considered as a local radio station under Italian law, since it had a broadcasting radius of more than 20 km and broadcast only to listeners living across the border. The court added that under Law no. 103 of 14 April 1975 ("new provisions concerning radio and television broadcasting"), the State had a monopoly of radio broadcasts intended for foreign countries. Lastly, the court upheld the closure order, which was executed on 21 January 1982. On 4 May 1982, following an appeal by Belton s.r., the Consiglio di Stato adopted three decisions, the first of which was filed at the registry the next day and the other two on 26 October: (i) an order (no. 124/82) staying execution of the judgment of 1 October 1981, so that Radio 24 was able to resume broadcasting on 9 May; (ii) a judgment (no. 508/82) allowing the appeal in part and reserving a decision as to the rest; and (iii) an order (no. 509/82) referring the case to the Constitutional Court - as sections 1, 2 and 45 of the 1975 Law appeared to raise a constitutional issue - and staying the proceedings. The Constitutional Court gave its decision on 6 May 1987 in a judgment (no. 153/1987) which was filed at the registry on 13 May. It declared section 2(1) of the impugned Law to be unconstitutional as it did not make any provision for the possibility of broadcasting programmes abroad under licences issued to private companies by the State authorities. SWITZERLAND AND INTERNATIONAL TELECOMMUNICATIONS LAW A. The International Telecommunication Convention The International Telecommunication Convention, which was concluded in the International Telecommunication Union on 25 October 1973 and revised on 6 November 1982, has been ratified by all the Council of Europe’s member States. In <COUNTRY> it has been published in full in the Official Collection of Federal Statutes (1976, p. 994, and 1985, p. 1093), and in the Compendium of Federal Law (784.16). Article 33, entitled "Rational Use of the Radio Frequency Spectrum", provides: "Members shall endeavour to limit the number of frequencies and the spectrum space used to the minimum essential to provide in a satisfactory manner the necessary services. To that end they shall endeavour to apply the latest technical advances as soon as possible." Article 35 § 1 reads: "All stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Members or of recognised private operating agencies, or of other duly authorised operating agencies which carry on radio service, and which operate in accordance with the provisions of the Radio Regulations." The Convention is supplemented and clarified by three sets of administrative rules: the Radio Regulations, the Telegraph Regulations and the Telephone Regulations. Only the first of these is relevant in the instant case. B. The Radio Regulations The Radio Regulations date from 21 December 1959 and were likewise amended in 1982 and also on other occasions. They run to over a thousand pages and - except for numbers 422 and 725 - have not been published in the Official Collection of Federal Statutes. The latter contains the following reference to them: "The administrative regulations relating to the International Telecommunication Convention of 25 October 1973 are not being published in the Official Collection of Federal Statutes. They may be consulted at the Head Office of the PTT, Library and Documentation, Viktoriastrasse 21, 3030 Berne, or may be obtained from the ITU, International Telecommunication Union, Place des Nations, 1202 Geneva." Apart from number 584 (see paragraph 36 below), the provisions of the Radio Regulations relevant to the present case are the following: Number 2020 "No transmitting station may be established or operated by a private person or by any enterprise without a licence issued in an appropriate form and in conformity with the provisions of these Regulations by the Government of the country to which the station in question is subject ..." Number 2666 "In principle, except in the frequency band 3900-4000 kHz, broadcasting stations using frequencies below 5060 kHz or above 41 MHz shall not employ power exceeding that necessary to maintain economically an effective national service of good quality within the frontiers of the country concerned." The Darmstadt plan By number 584 of the Radio Regulations, "Broadcasting stations in the band 100-108 MHz in Region 1 shall be established and operated in accordance with an agreement and associated plan for the band 5-108 MHz to be drawn up by a regional broadcasting conference (see Resolution 510). Prior to the date of entry into force of this agreement, broadcasting stations may be introduced subject to agreement between administrations concerned, on the understanding that such an operation shall in no case prejudice the establishment of the plan." The work of the conference contemplated in this provision resulted in the adoption in 1971 of a regional convention better known under the name of the Darmstadt plan. This instrument, which was superseded in 1984 by the "Geneva plan", governed the use of the 100-108 MHz frequency band and laid down a procedure for considering new applications for frequency allocations; it also indicated the position and characteristics of the transmitters concerned. Unlike <COUNTRY>, <COUNTRY> has not acceded to the plan. Nor have the two countries concluded an individual agreement as required before a transmitter can broadcast from one national territory to another. <COUNTRY>’s representations The Swiss Government never jammed the broadcasts from the Pizzo Groppera in order to stop them. They did, however, make approaches to the Italian authorities and to the International Telecommunication Union. The approaches to the Italian authorities Two delegations, one Swiss and one Italian, met in Berne on 29 and 30 November 1979 to study the "problem of external transmitters situated on Italian territory and broadcasting programmes to <COUNTRY>". The minutes of the meeting mentioned the following points: "The Italian delegation confirmed that on 22 November 1979 the ‘Ministero delle Poste e delle Telecomunicazioni’ sent a warning to the Belton company (Signor Fedele Tiranti) in Como, and receipt of the document was acknowledged on 23 November. The document stated that the transmitter had to confine the scope of its activities to Italian territory. Those in charge of the station had seven days in which to comply with this order, failing which their transmitter would be put out of action (disattivazione). The Swiss delegation expected immediate action. In accordance with the agreements concluded in Rome on 22 and 23 October 1979, the Italian delegation assured the Swiss delegation that the Italian Post and Telecommunications Authority would pursue the course of action already embarked on with the despatch of the warning (diffida), in order to halt the broadcasts to <COUNTRY>. The Swiss delegation stated nonetheless that if nothing was done by 20 December 1979 and if the broadcasts still continued, the case would have to be submitted to the International Telecommunication Union (ITU). As regards the external transmitters which were disrupting broadcasting in <COUNTRY>, some measure of agreement was reached. The Italian side had already taken measures to implement the rules in force. One transmitter had even temporarily ceased functioning. Future arrangements would be examined on a case-by-case basis by the representatives of the two authorities, e. Mr Blaser for <COUNTRY> and Mr Cito for <COUNTRY>. The Swiss delegation insisted on measures being taken, in accordance with the international agreements, against other transmitters sited in <COUNTRY> which broadcast programmes intended mainly for <COUNTRY>. The Italian delegation, which was willing to settle the problem in accordance with its international commitments, said that it could not for the time being participate in any official co-ordination procedure, mainly because there was currently no legal basis for it. The Swiss delegation confirmed its position vis-à-vis the international agreements and stressed the need for them to be applied unrestrictedly by the co-signatory countries. Given the importance of the issues in question, the two delegations decided to continue their negotiations early in 1980." The approaches to the International Telecommunication Union (a) The request for assistance from the Head Office of the PTT In a letter of 20 January 1987 the Radio Rights Division (Head Office of the PTT) submitted a request for assistance to the chairman of the International Frequency Registration Board (International Telecommunication Union). It indicated inter alia: "In <COUNTRY>, especially in the Po valley, there are a large number of private radio and television broadcasting stations transmitting on frequencies which have not been co-ordinated with the Swiss Post and Telecommunications Authority. This state of affairs contravenes Articles 2 and 4 of the regional broadcasting agreements (Stockholm 1961, Geneva 1984) and numbers 1214 and 1215 of the Radio Regulations, international agreements to which the Swiss and Italian authorities are parties. Some of these stations broadcast programmes and advertising designed for listeners in neighbouring Swiss towns and employ power exceeding that necessary to maintain economically an effective national service of good quality within the frontiers of the country concerned, contrary to number 2666 of the Radio Regulations. Furthermore, these private stations interfere with the proper functioning of Swiss radio services. To give a better picture of the situation, we are enclosing copies of the reports of harmful interference that we have sent to the Italian authorities (since 1984), pursuant to Article 22, Appendix 23 of the Radio Regulations. You will also find a summary table of Italian private radio stations which, through their presence on the airwaves, are preventing the implementation of our frequency allocations. For more than six years now, the various representations made by the Swiss PTT to the Italian authorities with a view to a co-ordination of effort have unfortunately produced no significant result. It is for this reason that before, if need be, taking the steps provided for in Article 50, number 189, of the International Telecommunication Convention (Nairobi, 1982), the Swiss authorities request the Board to take, as soon as possible, all necessary measures to remedy this situation." (b) The International Telecommunication Union’s reply On 8 July 1988 the chairman of the International Frequency Registration Board sent the Head Office of the Swiss PTT a copy of a letter sent the same day to the Italian Ministry of Post and Telecommunications informing it that frequency allocations were being used in breach of the Radio Regulations and regional agreements. The most recent of the Board’s representations to the Italian authorities was made in a telefaxed message on 29 November 1988, which read: "The Board has yet to receive any information about the solution of the cases of harmful interference reported by the Swiss authorities. Similar cases of harmful interference have recently been reported by the authorities of two other States. On behalf of the International Frequency Registration Board I wish to express serious concern at the apparent lack of progress in eliminating the harmful interference caused to radio and television broadcasting stations in <COUNTRY> and at the fact that a chaotic situation seems to have developed in the region which, to say the least, renders the existing international treaties nugatory. In your letter of 8 August 1988 you informed the Board that an agreement had been reached with the Swiss authorities, but no practical measure seems to have been taken. Your Department has not yet replied to the Board’s letters of 3 April 1987, 21 August 1987 and 25 October 1988 and has not submitted any comments - as it was required to do under RR [Radio Regulations] 1444 - on the Board’s investigation pursuant to RR 1438 and RR 1442 into the harmful interference caused to the Swiss authorities’ radio and television broadcasting stations which was reported to you in the Board’s letter of 8 July 1988. ... The Board wishes to draw your Department’s attention to the extremely serious situation currently prevailing. In particular: (I) The Board has concluded that the Italian authorities have failed to comply with the obligations which they freely undertook to fulfil in the International Telecommunication Convention, the Radio Regulations and the regional agreements. (II) More than a hundred Italian stations are currently causing persistent harmful interference to officially authorised stations in three neighbouring countries. (III) No means has been found of reducing this major interference, which continues to increase. (IV) There has been no specific reply to the Board’s letters. In view of this situation, which has existed for several years now and has recently become alarmingly serious, the Board is bound to consider taking further measures with a view to overcoming the serious consequences for the authorities of <COUNTRY>, <COUNTRY> and Yugoslavia of the Italian authorities’ failure to fulfil their obligations. Copies of this telefax are being sent to the authorities of <COUNTRY>, <COUNTRY> and Yugoslavia." The Board never received any reply from the Italian authorities.

France, Italy, Switzerland

Mrs. Mathieu-Mohin Mrs. Mathieu-Mohin, who is a French-speaking Belgian citizen, currently lives in Brussels but was living in Vilvoorde (Vilvorde) at the time she made her application to the Commission. Vilvoorde is in the administrative district of Halle-Vilvoorde (Hal-Vilvorde), in the Flemish Region, and in the electoral district of Brussels (see paragraphs 19, 21 and 37-38 below). The applicant had been elected by direct universal suffrage in the latter constituency and at the time sat in the Senate, one of the two Houses of the national Parliament. As she had taken the parliamentary oath in French, she could not be a member of the Flemish Council (see paragraphs 16, 27 and 30 below). She was, on the other hand, a member of the French Community Council, but not of the Walloon Regional Council (see paragraphs 27 and 30 below). She was not re-elected on 8 November 1981 and did not stand in the general election of October 1985. B. Mr. Clerfayt Mr. Clerfayt, who is likewise a French-speaking Belgian national, was living - and still lives - in Sint-Genesius-Rode (Rhode-Saint-Genèse). Like Vilvoorde, this municipality is in the administrative district of Halle-Vilvoorde and the electoral district of Brussels. Together with five other localities on the outskirts of the capital, however, it was given a "special status" by Parliament because of its large number of French-speaking inhabitants (see paragraph 37 below). Mr. Clerfayt was from the outset active in the ranks of the Brussels French-Speakers’ Democratic Front. Since 1968 he has sat in the national Parliament - in the House of Representatives - as a member for the electoral district of Brussels. He took the parliamentary oath in French, which prevents him from belonging to the Flemish Council; on the other hand, he was and is a member of the French Community Council, but not of the Walloon Regional Council. On 28 November 1983, Mr. Clerfayt sought leave from the Speaker of the House of Representatives to put a question to the member of the Flemish Executive (see paragraph 27 below) responsible for matters relating to regional planning, land policy, subsidised housing and compulsory purchase in the public interest, on a number of relevant issues arising in Sint-Genesius-Rode and in other municipalities in the electoral district of Brussels. The next day, leave was refused him on the ground that his request was inadmissible. He accordingly approached the Speaker of the Flemish Council on 13 December, who gave him a similar reply on 15 December. THE CONSTITUTIONAL AND LEGISLATIVE BACKGROUND The Kingdom of <COUNTRY> was initially conceived, in 1831, as a unitary State although divided into provinces and municipalities with a large degree of autonomy (Articles 1, 31 and 108 of the Constitution of 7 February 1831), but it is gradually moving towards a federal pattern of organisation. This process of change, in which the main landmarks have been the constitutional reforms of 24 December 1970 and 17 July 1980, is not yet over. Apart from a number of repercussions on central national institutions, it has been reflected in the creation of Regions and Communities; and the position of elected representatives and electors resident in the administrative district of Halle-Vilvoorde has not remained unaffected. A. Development of central national institutions Legislative power at national level is exercised jointly by the King and both Houses of Parliament, e. the House of Representatives and the Senate (Article 20 of the Constitution). The House of Representatives has 212 members elected for four years by direct universal suffrage in a compulsory secret ballot, under a system of proportional representation (Articles 47, 48, 49 § 1 and 51); the Senate’s membership is made up of 106 Senators elected in the same manner, together with a further number either elected by the provincial councils or else co-opted, again for four years (Articles 53-55). As regards the House of Representatives, each electoral district has as many seats as the number of times by which its population can be divided by the national factor, which is calculated by dividing the population of the Kingdom by 212; the remaining seats are allotted to the districts with the largest surplus unrepresented populations (Article 49(2)). In order to win a seat, a candidate must poll about 20,000 votes, the exact quota varying slightly from one constituency to another. For certain decisions specified in the Constitution, the elected members of each House are divided into a French-language group and a Dutch-language group in the manner prescribed by law and irrespective of the language each member personally speaks (Article 32 bis of the Constitution). In the House of Representatives the French-language group includes as of right the members elected by the constituencies of the French-speaking region and by the constituency of the district of Verviers, while the Dutch-language group contains the members elected by the constituencies of the Dutch-speaking region (see paragraph 19 below); the members elected in the Brussels electoral district belong to one or the other group, according as they choose to take the parliamentary oath in French or in Dutch (section 1(1) of the Act of 3 July 1971). Similar criteria apply to the language groups in the Senate (section 1(2) of the same Act). The language groups have a role to play, inter alia, in the making of various decisions - decisions to withdraw a territory from the scheme of division into provinces in order to give it a special status (Article 1 of the Constitution, last paragraph); to rectify or otherwise alter the boundaries of the language regions (Article 3 bis); to lay down the composition and manner of functioning of the Community Councils and Executives (Article 59 bis § 1 in fine); to specify the scope of the powers of the aforesaid Councils (Article 59 bis §§ 2 in fine, 2 bis in fine and 4 bis); and to determine the powers and territorial jurisdiction of regional institutions (Article 107 quater, last paragraph). In such cases the Constitution requires "a majority of votes in each language group of each House"; further conditions are that "the majority of the members of each group is present" and that "the total of the affirmative votes cast in the two language groups amounts to at least two-thirds of the votes cast". In addition to this there is the system - sometimes called the "alarm bell" - provided for in Article 38 bis of the Constitution: "Other than for the budgets and for Acts requiring a special majority, a reasoned motion signed by at least three-quarters of the members of one of the language groups may be moved after the report has been tabled and before the final vote is taken in public session, stating that the provisions of a specified Bill are likely to be seriously detrimental to relations between the Communities. In that case the parliamentary proceedings shall be suspended and the motion referred to the Cabinet, which shall give a reasoned opinion on it within thirty days and request the House concerned to vote either on this opinion or on the Bill, possibly in amended form. This procedure shall not be used more than once by the members of a language group in respect of any one Bill." These provisions are designed primarily to protect the speakers of the country’s minority language, e. French. On the other hand, membership of a language group does not entail any obligation to use the language concerned during parliamentary debates. Furthermore, by the terms of Article 32 of the Constitution, members of the House of Representatives and the Senate "represent the nation" as a whole, "not solely the province or subdivision of a province which has sent them to Parliament". As to the Cabinet, it shall have "as many French-speaking Ministers as Dutch-speaking ones", "with the possible exception of the Prime Minister" (Article 86 bis of the Constitution). B. Regions and Communities Description (a) Language regions By Article 3 bis of the Constitution, added on 24 December 1970, <COUNTRY> is divided into "four language regions: the French-language region, the Dutch-language region, the bilingual region of Brussels-Capital and the German-language region"; each municipality "shall belong to one of these". The first language region comprises the provinces of Hainaut, <COUNTRY> and Namur, the province of Liège excluding the municipalities in the German-language region, and the district of Nivelles in the province of Brabant; the second region contains the provinces of Antwerp, West Flanders, East Flanders and Limbourg and also the districts of Halle-Vilvoorde - in which Vilvoorde and Sint-Genesius-Rode lie (see paragraphs 11 and 12 above) - and Louvain in Brabant; the third, Brussels and eighteen municipalities on its outskirts; and the fourth, twenty-five of the municipalities in the district of Verviers (sections 3-6 of the Acts on the use of languages in administrative matters, consolidated on 18 July 1966, hereinafter referred to as "the 1966 consolidated Acts"). (b) Regions The language regions serve to define the territorial scope of Acts on the use of languages in administrative and judicial matters as well as in education; they do not have their own powers or institutions. In this they differ from the Regions - sometimes described as "political" - which were set up under the constitutional reform of 24 December 1970. By Article 107 quater, first paragraph, of the Constitution, <COUNTRY> has "three Regions: the Walloon Region, the Flemish Region and the Brussels Region"; there is no "German Region". The Special Act on Institutional Reform of 8 August 1980 ("the 1980 Special Act") "transitionally" demarcates the territory of the first two Regions: the Flemish Region comprises exactly the same provinces and administrative districts as the Dutch-language region, while the Walloon Region includes, in addition to the provinces of Hainaut, <COUNTRY> and Namur and the district of Nivelles, the whole of the province of Liège not excluding the municipalities of the German-language region (section 2 of the 1980 Special Act). On the other hand, the 1980 Special Act makes no mention of the Brussels Region. The boundaries of this continue to be governed by the final paragraph of section 1 of the Act, consolidated on 20 July 1979, "establishing temporary Community and regional institutions"; they correspond to the "territory of the administrative district of Brussels-Capital". The 1980 Special Act was passed with the special majorities required under Articles 59 bis and 107 quater of the Constitution (see paragraph 17 above) and which would be required for any subsequent amendments. In the Senate it was passed by 137 votes to 22, with 3 abstentions, and in the House of Representatives by 156 votes to 19, with 5 abstentions. (c) Communities Lastly, Article 3 ter, first paragraph, of the Constitution, which dates back to the revision of 17 July 1980, establishes "three Communities: the French Community, the Flemish Community and the German-speaking Community", all of which - like the Walloon and Flemish Regions - have legal personality (section 3 of the 1980 Special Act). Spheres of competence (a) Regions Section 6(1) of the 1980 Special Act was enacted to implement Article 107 quater, second paragraph, of the Constitution and it sets out, at length and in detail, the competence of the Walloon and Flemish Regions in matters of regional planning, the environment, rural renewal and nature conservation, housing, water policy, economic policy, energy policy, subordinate authorities, employment policy and applied research. It does not apply to the Brussels Region, which continues to come under the national Parliament as regards regional matters or those which can be regarded as local (section 48 of the "ordinary" Act on Institutional Reform of 9 August 1980, taken together with section 2 of the "consolidated" Act of 20 July 1979). (b) Communities Article 59 bis §§ 2, 2 bis and 3 of the Constitution confers powers on the French and Flemish Communities in cultural matters, education (with certain exceptions), co-operation between the Communities, international cultural co-operation, matters on which members of the public may correspond with the authorities in their own language even if it is not the local official language (matières "personnalisables") and - in some fields - language use. Sections 4 and 5(1) of the 1980 Special Act contain detailed provisions as to cultural matters and matières personnalisables; the latter relate to health policy, aid for individuals and applied scientific research. The German-speaking Community, to which little further reference will be made hereinafter, has slightly less extensive powers (Article 59 ter §§ 2-4 of the Constitution). Institutions (a) Description Article 107 quater, second paragraph, of the Constitution leaves it to Parliament to set up the necessary regional bodies. Article 59 bis § 1, on the other hand, provides that the French Community and the Flemish Community shall each have a Council and an Executive. Under the following paragraph, these Councils and Executives "shall be able to exercise the powers of the Walloon Region and the Flemish Region respectively, in the circumstances and the manner prescribed by law". The legislature has availed itself of this possibility in respect of the Flemish Region only. By section 1(1) of the 1980 Special Act, "the Council and the Executive of the Flemish Community", referred to as "the Flemish Council" ("de Vlaamse Raad") and "the Flemish Executive" ("de Vlaamse Executieve"), are vested with powers not only in respect of the Community matters listed in Article 59 bis of the Constitution but also, in the Flemish Region, in respect of the regional matters listed in Article 107 quater. On the other hand, there is a Council and an Executive of the French Community for Community matters and a Walloon Regional Council and Executive for regional matters (section 1(2) and (3) of the 1980 Special Act). Subsection 4 of section 1 of the 1980 Special Act admittedly authorises the two Councils to "decide by common accord" that "the Council and Executive of the French Community" shall exercise, in the Walloon Region, "the powers of the regional institutions in respect of the matters referred to in Article 107 quater of the Constitution", but it has not been applied hitherto. The Brussels Region continues for the time being to be regulated by the consolidated Act of 1979 which has been referred to previously. It does not have any legislative assembly similar to the Flemish Council or the Walloon Regional Council or any executive elected by such an assembly; it has only a "ministerial committee" appointed by royal decree (section 4). According to the Government, this is a "‘wait-and-see’ situation". In 1980, the Legislation Section of the Conseil d’Etat, which had been asked for its opinion, expressed the view that the Bill that was to become the 1980 Special Act was "constitutionally admissible only on condition that implementation of Article 107 quater [of the Constitution] in respect of the Brussels Region is merely postponed and not abandoned and that failure to implement it does not continue beyond a reasonable time". In a statement on 29 November 1985, the government elected the previous month made it clear that the Study Centre for Reform of the State (Centre d’études pour la réforme de l’État) would have to "pay particular attention to the problems of Brussels". The Study Centre was set up under a royal decree of 14 March 1983 and is staffed by parliamentarians and practising or former university teachers of constitutional law. Its remit is to prepare the ground for the "continuation, amendment and improvement of reform of the State". (b) Membership (i) Councils The Constitution indicates only, in Article 59 bis § 1 in fine (French and Flemish Communities), Article 59 ter § 1, second sub-paragraph (German-speaking Community), and Article 107 quater, second paragraph (Regions), that the Councils shall consist of elected delegates. When required to prescribe how these were to be appointed, the legislation provided for two consecutive transitional periods designed to ease the change to a permanent system. The first period, during the course of which the application to the Commission was lodged (5 February 1981), ended with the complete renewal of both Houses of Parliament on 8 November 1981; the second period, which is not yet over, will end once Articles 53 and 54 of the Constitution, concerning the Senate, have been revised. During the first transitional period the Flemish Council and the French Community Council comprised the members of the Dutch- and French-language groups of the two Houses respectively; the Walloon Regional Council was composed of those members of the same French-language groups who were elected either in the provinces of Hainaut, Liège, <COUNTRY> or Namur, or alternatively in Brabant or by the Senate if, additionally, they were resident in the Walloon Region on the day of their election (section 28(1) of the 1980 Special Act). For the duration of the second transitional period, which has not yet ended, the Flemish Council, the French Community Council, and the Walloon Regional Council consist respectively of the members of: - the Dutch-language group in the House of Representatives and, if they have been directly elected by the electorate, in the Senate; - the French-language group in the House of Representatives and, subject to the same condition, in the Senate; and - the French-language group in either House, provided that they are Representatives or Senators directly elected in the provinces of Hainaut, Liège, <COUNTRY> or Namur or in the district of Nivelles. This is the provision made in section 29 of the 1980 Special Act, to which the applicants’ complaints are primarily directed (see paragraph 44 below). The section was passed by the special majorities required under Articles 59 bis and 107 quater of the Constitution. In the Senate it was passed by 127 votes to 19, with 4 abstentions, and in the House of Representatives by 160 votes to 16, with 2 abstentions. Once the permanent system has come into force, the three Councils will consist solely of members of the Senate directly elected by the electorate, viz.: - the Senators of the Dutch-language group in the case of the Flemish Council; and - the Senators of the French-language group in the case of the French Community Council and, if they were elected in the provinces of Hainaut, Liège, <COUNTRY> or Namur or in the district of Nivelles, in the case of the Walloon Regional Council (sections 24 and 25 of the 1980 Special Act). The first paragraph of section 50 of the 1980 Special Act makes a special provision in respect of the "members of the Flemish Council elected by the constituency for the Brussels district and who, for as long as that electoral district shall comprise [as it does today (see paragraph 38 below)] several administrative districts, are resident in the Brussels-Capital bilingual region on the day of their election": although they are on the same footing as their colleagues in Community matters, they "shall not vote within the Flemish Council on matters for which the Flemish Region has responsibility". (ii) Executives The three Executives are elected by the Councils from among their own members (sections 59 and 60 of the 1980 Special Act). The Flemish Executive has nine members, the French Community Executive three and the Walloon Regional Executive six; at least one member of the Flemish Executive and the French Community Executive "shall belong to the Brussels-Capital bilingual region" (section 63). "Whenever the Flemish Executive discusses matters for which the Flemish Region has responsibility, any members elected by the constituency of the Brussels district and who, for as long as that electoral district shall comprise several administrative districts, are resident in the Brussels-Capital bilingual region on the day of their election shall sit only in an advisory capacity" (section 76(1)). The Brussels Region Ministerial Committee (see paragraph 28 above) consists of three members appointed "by royal decree after deliberation in Cabinet" and not elected by an assembly. The members are: one Minister, who acts as Chairman, and two Ministers of State "one of whom shall be from a different language group from the [Chairman’s]" (section 4, first paragraph, of the 1979 consolidated Act). (c) Powers The French and Flemish Communities, like the Walloon and Flemish Regions, have power to issue decrees, and this power is exercised jointly by their respective institutions (Article 26 bis and Article 59 bis §§ 2, 2 bis and 3 of the Constitution, sections 17 and 18 of the 1980 Special Act); additionally, their Executives have power to make regulations (section 20 of the 1980 Special Act). The Executives each work in only one language (French or Dutch, as appropriate), without interpreters for the other language. A decree has "the force of law" and "may abrogate, supplement, amend or replace existing provisions of law" (section 19(2) of the 1980 Special Act). The constitutional reforms of 1970 and 1980 thus resulted in the rule-making function being shared by three distinct legislative bodies: the national Parliament, the Community Councils and the Regional Councils. Subject to a number of exceptions, the French Community Council’s decrees and, in Community matters, those of the Flemish Council apply in the French-language region and the Dutch-language region respectively, "and also to institutions established in the Brussels-Capital bilingual region which, by reason of their activities, must be regarded as belonging exclusively to one of the Communities" (Article 59 bis §§ 4 and 4 bis of the Constitution); the Walloon Regional Council’s decrees and, in regional matters, those of the Flemish Council apply "in the Walloon Region or the Flemish Region, as appropriate" (section 19(3) of the 1980 Special Act); and the decrees of the Flemish Council indicate whether "they regulate any of the matters referred to in Article 59 bis or in Article 107 quater of the Constitution", in other words Community or regional matters (section 19(1), second paragraph, of the 1980 Special Act). By Article 107 ter of the Constitution, "the procedure for the avoidance of conflict between statutes, decrees and the rules referred to in Article 26 bis, and between different decrees or different [rules] shall be prescribed by law". "For the whole of <COUNTRY> there shall be a Court of Arbitration" responsible for resolving such conflicts and whose membership, jurisdiction and manner of functioning is to be laid down by law (Act of 28 June 1983). The special position of voters and elected representatives resident in the administrative district of Halle-Vilvoorde The administrative district of Halle-Vilvoorde was created in 1983, and today it comprises the municipalities of the former administrative district of Brussels, excluding those in the bilingual district of Brussels, but including the six "peripheral municipalities with special status", of which Sint-Genesius-Rode is one (sections 3(2), 7 and 23-31 of the 1966 consolidated Acts). Halle-Vilvoorde comes within the Dutch-language region and the Flemish Region and thus under the authority of the Flemish Council and Executive, and is accordingly not subject to the authority of the French Community institutions or those of the Walloon Region (see paragraphs 19, 21 and 36 above). It nevertheless contains a sizable French-speaking minority: according to the applicants (whose figures were not disputed by the Government), at least 100,000 people out of a total population of 518,962 at 1 January 1982. The French-speakers are even claimed to be in the majority in the six "peripheral municipalities", and the Belgian State is alleged to have acted against their wishes in hitherto refusing to incorporate these municipalities into the Brussels Region. Ordinarily, electoral districts in <COUNTRY> correspond to administrative ones (Article 87 of the Electoral Code). There is one exception, however. The administrative districts of Brussels-Capital and Halle-Vilvoorde together form a single electoral district for parliamentary and provincial elections, with Brussels as the principal town (section 3(2), second paragraph, of the 1966 consolidated Acts). The votes cast in the two administrative districts are consequently counted together, and it is impossible to distinguish between candidates elected by the one district and those elected by the other. The applicants claim that the French-speaking voters in the Halle-Vilvoorde district can expect - given their numbers and the statutory quota (see paragraphs 15 and 37 above) - to return three or four members to the House of Representatives by their own votes alone. In the general election of 8 November 1981 there were 999,601 registered voters in the Brussels electoral district, who had to elect 34 Representatives and 17 Senators (Royal Decree of 1 December 1972 and Act of 19 July 1973). Nothing prevents French-speaking candidates - whether resident in Halle-Vilvoorde or not - from standing for election in that district, or the voters - whether French-speaking or not - from voting for them. If they are elected, they may take the parliamentary oath in French or Dutch as they wish, irrespective of the language they personally speak (see paragraph 16 above). If they take the oath in French (as the applicants did), their membership of the French-language group in the House of Representatives or the Senate entitles them to sit on the French Community Council (which has no responsibility for the district of Halle-Vilvoorde) but not on the Flemish Council - whether exercising its Community or its regional functions - nor on the Walloon Regional Council (see paragraphs 30-32 and 36 above). Conversely, if they take the oath in Dutch, they will be members of a Dutch-language group and will accordingly sit on the Flemish Council but not on the French Community Council nor on the Walloon Regional Council (see paragraphs 30-32 above); and they will lose the right to vote in a French-language group on those matters in respect of which the Constitution requires special majorities (see paragraph 17 above). Correspondingly, the French-speaking voters in Halle-Vilvoorde cannot be represented on the Flemish Council other than by parliamentarians who have taken the oath in Dutch. Candidates are not under any obligation to state in advance which language group they will join, and they do not usually do so.

Luxembourg, Belgium

The applicants are property owners who complain of the reduction of rent due to them under tenancy agreements by operation of the 1981 Rent Act (Mietrechtsgesetz). THE PARTICULAR CIRCUMSTANCES OF THE CASES A. Leopold and Maria Mellacher The applicants jointly own a building in Graz comprising several apartments leased to tenants. One of these apartments, consisting of two rooms and a kitchen (with a total surface area of 40m2), was let on 15 September 1978 under a freely negotiated lease in accordance with the provisions of the 1922 Rent Act, as amended in 1967, at a rent of ATS (Austrian schillings) 1,870 per month. Pursuant to the 1981 Rent Act, the tenant of the above apartment applied on 5 February 1982 to the Graz Arbitration Board (Schlichtungsamt) for a reduction of his rent to ATS 330 per month, that is 150% of the maximum basic rent for class D apartments, as from 1 March 1982. After holding a hearing on 25 May 1982, the Board allowed the application on 7 June 1982. The applicants appealed against this decision to the District Civil Court (Bezirksgericht für Zivilrechtssachen) of Graz. Their tenant claimed that the apartment was in class D because, when he had rented it, there had been no running water or lavatory; these facilities were subsequently installed at the tenant’s expense. On 22 October 1982 the Graz court confirmed that the apartment was in class D and that under section 16(2) of the 1981 Rent Act the monthly rent might not therefore exceed the amount of ATS 50 per square metre. Under section 44(2), the rent had to be reduced to 150% of the statutory amount, which resulted in a rent of ATS 330.- per month in this case. The overcharge as from 1 March 1982 (ATS 12,320.-) was ordered to be repaid to the tenant. The applicants appealed, claiming in particular that the restrictions resulting from the application of section 44 of the 1981 Rent Act were unconstitutional. The reduction of a freely and lawfully negotiated rent in fact amounted to an expropriation of the landlord’s property without compensation. For these reasons, the applicants suggested that the appellate court refer the question of the constitutionality of the relevant legislation to the Constitutional Court (Verfassungsgerichtshof). The Regional Civil Court (Landesgericht für Zivilrechtssachen) of Graz rejected the appeal on 18 February 1983. It did not consider it necessary to submit the matter to the Constitutional Court having regard to the Constitutional Court’s case-law on similar issues. B. Johannes, Ernst and Anton Mölk and Maria Schmid The applicants are members of the same family and reside in Innsbruck. They jointly own a building in Innsbruck. One of the apartments in this house, having a total surface area of 68 m2 and consisting of three rooms and a kitchen, plus lavatory and water facilities accessible by a corridor outside the apartment, was let on 7 December 1972 under a freely negotiated lease in accordance with the provisions of the 1922 Rent Act, as amended in 1967. The rent was set at ATS 800 per month until August 1975, and at ATS 1,500 per month as from 1 September 1975, regard being had to certain improvements to be made by the tenants (including in particular the transfer of the water installations to the apartment itself). The rent was furthermore subject to an indexing provision on the basis of the consumer-price index for 1966. As from April 1983, the rent would therefore have been ATS 2,985 per month. In fact, the tenants actually paid ATS 1,308.30 per month as from November 1982. On 4 October 1982, pursuant to the 1981 Rent Act, the tenants of the above apartment applied to the Innsbruck Arbitration Board to reduce the rent to 150% of the maximum basic rent for class D apartments. The Board granted the application on 6 April 1983. The applicants appealed to the District Court of Innsbruck. They argued that, although certain improvements had not been financed by themselves but by the tenants, those improvements had in fact been agreed in the original lease and had been reflected in a reduction of the rent for the initial period. The tenants objected that the costs of their investments had by far exceeded the amount by which the rent had temporarily been reduced. The court decided on 22 June 1983 that the chargeable rent should be based on that for class D apartments because the apartment in question had been in this class when the lease was concluded and the improvements had not been carried out by the landlords. It accordingly reduced the rent to ATS 561 per month as from November 1982. At the same time, it ordered the applicants to pay back to the tenants the overpayments received since that time (amounting to some ATS 4,000). The applicants appealed against this decision, claiming that the rent should be based on that for class B apartments and not for class D and that they had suffered expropriation or other disproportionate interference with their property rights as guaranteed under Article 5 of the Basic Law (Staatsgrundgesetz) and Article 1 of Protocol No. 1 (P1-1) to the Convention. They submitted that the question of constitutionality should be referred to the Constitutional Court. The Regional Court of Innsbruck, although it allowed the appeal in part by a decision of 15 November 1983, confirmed the classification of the apartment in class D, regard being had to its standard at the time of the conclusion of the lease. The court entertained no doubt with regard to the constitutionality of the applicable legislation. Section 44 of the 1981 Rent Act provided for a measure of deprivation which was in conformity with the requirements of the Constitution and of the Convention. The public interest served by this legislation was securing the stable, socially and economically justified housing rents for apartments which as a rule served the important needs of those broad sections of the population who depended on leased accommodation. On 28 December 1983 the applicants applied to the Innsbruck District Court for compensation from the State for expropriation, in the amount of ATS 26,600 (in regard to the 14-month period between November 1982 and December 1983). The application was rejected on 5 July 1984 and the applicants did not appeal in time against this decision. Their subsequent application to be granted leave to appeal out of time was finally rejected by the Innsbruck Regional Court on 3 April 1986. The applicants also lodged an appeal against the Regional Court’s decision of 15 November 1983 based on the unconstitutionality of the applicable legislation. On 6 March 1984 the Supreme Court (Oberster Gerichtshof) rejected this appeal as inadmissible. Christiane Weiss-Tessbach and the successors in title of Maria Brenner-Felsach The first applicant is the owner, and the late Maria Brenner-Felsach, whose successors in title have pursued the application, was the usufructuary, of a house in Vienna comprising several apartments leased to tenants. Other premises in the house are let for non-residential purposes. One of the apartments, consisting of six rooms, a kitchen, a corridor, a bathroom and a lavatory (total surface 200m2), was let on 1 April 1979 under a freely negotiated lease in accordance with the provisions of the 1922 Rent Act, as amended in 1967. The rent was set at ATS 3,800 per month, subject to an indexing provision on the basis of the consumer price index for 1976. The rent had risen to ATS 4,236.51 per month by January 1982. Pursuant to the 1981 Rent Act, the tenant of the above apartment asked on 23 December 1981 for a reduction of his rent to ATS 3,300 per month (that is 150% of the maximum basic rent for class C apartments) as from 1 January 1982. The applicants’ lawyer replied on 13 January 1982 that the request was unjustified. On 19 February 1982 the tenant applied to the Vienna Arbitration Board for the rent to be reduced to ATS 3,300 per month as from January 1982. After holding a hearing on 24 February 1982, the Board decided on 28 May 1982 to allow the application. The applicants appealed to the Vienna Central District Court (Bezirksgericht Innere Stadt Wien). They submitted that the apartment was in class B for the purposes of section 16(1)4 of the 1981 Rent Act and also that the house was situated in a zone for the protection of monuments to which section 16(1)3 of the Act applied. The court decided on 31 August 1983 to reduce the rent to ATS 3,300 per month as from 1 January 1982. It held that the apartment had been in class C at the date of the conclusion of the lease, and that section 16(1)3 was inapplicable because the house was not situated in a zone of historical or architectural interest. It was true that the applicants had made considerable investments (in the total amount of ATS 563,745), but this did not affect the legal position. The applicants appealed against this decision, alleging in particular that the apartment had been wrongly classified in class C, and that section 16(1)3 of the 1981 Rent Act was applicable. The Regional Civil Court of Vienna rejected the appeal on 13 December 1983. It considered that the court of first instance, on the evidence, had rightly concluded that neither section 16(1)4 nor section 16(1)3 of the 1981 Rent Act was applicable. In particular it had not been proven that the investments made by the applicants had been financed from other resources than their rent income which they were legally obliged to use for maintenance purposes. It had therefore not been shown that they had borne a considerable financial risk of their own. In these circumstances the legal conditions for reducing the rent were fully satisfied. THE RELEVANT LEGISLATION A. The development of the rent control legislation up to 1981 A system of rent control has existed in <COUNTRY> since World War The 1922 Rent Act (Mietengesetz) which, subject to numerous amendments, remained in force until 1981, provided for the freezing of rents at the 1914 level (section 2). The landlord was entitled to levy extra charges in respect of current costs of administration, taxes, and special equipment (Betriebskosten, sections 4 and 5). On the conclusion of a new lease he could ask for an increase not exceeding a maximum amount laid down in the law (Neuvermietungszuschlag, section 16 of the pre-1967 version). The landlord was obliged to use the income from rent for the normal maintenance costs of the building but he was not required to carry out any improvements (section 6), which, however, could be undertaken with the agreement of the tenants concerned subject to a supplement to the rent to be paid by them (section 5, first sentence). If the necessary maintenance costs were not covered by the rental income of the last seven years, the landlord could ask for an increase in the amount of rent (erhöhter Hauptmietzins) to be fixed by the court for a period not exceeding ten years. In that case the landlord was required to use the entire additional rental income during that period for the necessary maintenance measures (section 7). The 1922 Rent Act further provided for a considerable number of restrictions on the landlord’s right to terminate a lease (sections 19 to 23). In principle, leases could be terminated only for important reasons (section 19(1)). The Act specified what was to be regarded as an important reason (section 19(2)) and in practice the grounds upon which a lease could be terminated were interpreted in a restrictive manner. The lease did not terminate when the tenant died. The Act provided for a right of succession (Eintrittsrecht) of near relatives (spouse, children and adoptive children, brothers and sisters) and other persons who had lived in the household of the tenant (section 19(2)11). When the landlord or near relatives wished to use the apartment in question the contract could only be terminated if there existed an "urgent need" (which in practice was interpreted as meaning a "genuine emergency"), and if adequate alternative accommodation was made available to the tenant (section 19(2)6). However, the above restrictions, in particular the restrictions on the claimable amount of rent, were not of general application. No rent restrictions applied to apartments in buildings constructed after 1917 or to certain other apartments including apartments built after the entry into force of the 1922 Rent Act (section 1). A split housing market was therefore created which privileged the owners of newly constructed houses or apartments whose rents were subject only to the general provisions of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) concerning the law of contracts. Under the German rule in <COUNTRY> a rent-freeze was introduced also in respect of certain tenancy agreements which did not come within the scope of the 1922 Rent Act (Mietzinsregelungsverordnung). This freeze was maintained by Austrian legislation introduced in 1954 (Zinsstoppgesetz). In respect of leases in force on 30 June 1954 the freely negotiated rent resulting from an earlier agreement could no longer be increased unless this was authorised by a judicial decision taken by analogous application of the relevant provisions of the 1922 Rent Act concerning rent increases. However, no restrictions applied to new agreements in respect of apartments which did not come within the scope of the 1922 Rent Act, e. principally apartments in new houses. In 1967, an amendment to the 1922 Rent Act (Mietrechtsänderungsgesetz) brought about an extensive relaxation of controls in respect of apartments which came within the scope of this Act. As from 1 January 1968 rent restrictions were continued only for earlier leases which remained in force, including leases continued on the basis of the right of succession of a person other than the original tenant. Here the rent freeze continued to operate on the basis of the conversion of each Crown of the 1914 rent into ATS 1 for apartments and into ATS 2 (ATS 3 as from 1 January 1969) for business premises. However, the parties could fix a higher rent by agreement once the lease had lasted more than six months. New leases were no longer subjected to any restrictions on the amount of rent even in respect of apartments which had previously been subject to rent control, provided that these apartments were re-let within six months of the entry into force of the new legislation, or six months after vacation by the previous tenant (section 16(1), new version). The landlord was obliged to use at least half of his additional rent income for maintenance purposes (section 16(2)). The easing of rent controls led to relatively high rents even for newly let apartments in old houses. The continued rent-freeze in relation to existing leases encouraged a tendency towards the perpetuation of old leases, and a corresponding scarcity of vacant apartments in this category which had repercussions on the free market for new leases. The relatively high rents which could be obtained for newly let apartments in old houses were further boosted by the existence of high rents in the market for newly constructed apartments, which were exempted from the system of rent controls even before 1968. In 1981 a landlord could obtain on the free market up to thirty times the rent frozen at the 1914 level. The unfavourable trend in the housing market led to the re-introduction of rent controls for substandard apartments in 1974. By a further amendment to the 1922 Rent Act (Mietengesetznovelle), fresh restrictions were introduced for new leases of such apartments. While the existing leases in respect of these apartments remained unaffected (even if they were based on a free agreement concluded after 1968), new leases could be concluded as from 1 August 1974 only on the basis of a statutory square metre rent of ATS 4 per month (section 16(3) of the Rent Act as amended in 1974). As this amount was regarded as insufficient by many landlords, they preferred to leave vacant apartments in this category unoccupied, a fact which put an additional strain on the housing market and tended to lead to higher rents for the remaining categories of apartments. Apart from the above rent control provisions which affected mainly apartments in houses constructed before World War I, the legislation prior to 1981 also included rent control provisions applicable to certain houses constructed at a later date, in particular houses constructed with public subsidies (Wohnbauförderungsgesetz 1968) or by non-profit-making housing associations (Wohnungsgemeinnützigkeitsgesetz 1979). This legislation contained detailed regulations on the calculation of rents which were based on the principle that they should not exceed the costs incurred by the owner. It has not been affected by the 1981 Rent Act. B. The 1981 Rent Act The 1922 Rent Act has been repealed and replaced by a new Act, which entered into force on 1 January 1982. It was intended to bring about an overall reform of the law governing the relationship between landlords and tenants. However, like the previous Rent Act, the 1981 Act does not apply to all leases. Section 1(2) exempts (i) premises let to certain types of enterprises, (ii) premises let as tied accommodation, (iii) premises let for less than six months and (iv) premises let as secondary residences or for leisure purposes. Section 1(3) excludes the application of the rent control provisions to buildings constructed and owned by non-profit-making housing associations, which in this respect are subject to the special rent control provisions of the Non-Profit Housing Act (Wohnungsgemeinnützigkeitsgesetz, see paragraph 30 above). Finally, section 1(4) stipulates that only certain provisions (concerning the termination of leases, the right of succession to leases and maintenance contributions) are to apply to (i) buildings constructed without public subsidies after 30 June 1953, (ii) houses with not more than two separate apartments and (iii) freehold flats (Eigentumswohnungen) in buildings constructed after 1945. In these cases the amount of rent can be freely agreed without any restrictions. As regards apartments and premises which come within the scope of the Act, there has been a fundamental change concerning the system of rent control. Further important modifications of the earlier legislation concern the landlord’s obligations as to the maintenance of his property. The provisions on termination of leases have in substance been maintained subject to certain minor amendments. The relevant provisions of the 1981 Rent Act Section 15 "Rent under the head lease (Hauptmiete) (1) The rent payable by the tenant under the head lease in respect of the rented premises shall comprise: the basic rent (Hauptmietzins); the proportion of the running costs attaching to the rented premises and the recurrent public charges payable on the premises; the proportion of the relevant exceptional expenses attaching to the rented premises; an appropriate amount for furniture rented with the property or other services provided by the landlord in addition to making the rented property available for use. (2) The landlord shall also be entitled to charge the tenant the turnover tax payable on the rent. If the landlord does this, he must however deduct from the expenses which he passes on to the tenant the tax (Vorsteuerbeträge) payable thereon. ..." Section 16 "Agreements concerning the amount of the basic rent (1) Agreements between the landlord and the tenant concerning the amount of the basic rent for premises rented under a head lease shall be permissible, irrespective of the restrictions set out in sub-section (2), up to the amount appropriate to the size, type, layout, location, fittings and condition of the property, if: the rented property is not used for residential purposes; ... the property is located in a building which has been newly constructed on the basis of a building permit issued after 8 May 1945, or if the premises for rent have been newly created by conversion, the addition of an extra storey, the installation of fixtures or the building of an extension on the basis of a building permit issued after 8 May 1945; ... the property is located in a building which qualifies for protection as a monument, or in order to preserve the townscape or local architectural environment or on similar grounds of public interest, provided that, apart from the grant of public funds, the landlord has himself made a considerable financial contribution for its preservation after 8 May 1945; the rented property is a class A apartment with a usable floor-space of over 90m2 or a class B apartment with a usable floor-space of over 130m2, provided that the landlord lets an apartment of this description within six months of its vacation by the previous tenant or occupier to a person not entitled to succeed to the rights of the previous tenant; the rented property is a class A or B apartment in a good condition, the standard of which has been raised by the landlord, after 31 December 1967, by combining class C or D apartments, by other large-scale construction work for the extension or conversion of one or more class C or D apartments or otherwise by means of considerable financial expenditure; ... the rented property is a class C apartment in a good condition, the standard of which has been raised by the landlord, after 31 December 1967, by combining class D apartments or by other large-scale construction work for the extension or conversion of one or more class D apartments or otherwise by the investment of considerable financial expenditure; ... the tenancy has been in existence for longer than six months. (2) If the conditions set out in sub-section (1) are not satisfied, the basic rent agreed between the landlord and the tenant for an apartment rented under a head lease may not exceed, per month and per square metre of usable floor-space: ATS 22 for a class A apartment, that is a habitable apartment with at least 30m2 of usable floor-space, comprising at least a room, a kitchen (kitchenette), hall, lavatory and bathing facilities corresponding to the current standard (bathroom or bathing recess) and which has central heating, or single-storey heating, or comparable built-in heating and a source of hot water; ATS 50 for a class B apartment, that is a habitable apartment comprising at least a room, a kitchen (kitchenette), hall, lavatory and bathing facilities corresponding to the current standard (bathroom or bathing recess); ATS 11 for a class C apartment, that is a habitable apartment which has at least inside water facilities and lavatory; ATS 50 for a class D apartment, that is an apartment which has either no inside water facilities or no inside lavatory, or which has these facilities one of which is however not usable and has not been repaired within a reasonable time after the tenant has informed the landlord [of the defective state]. (3) Classification in accordance with sub-section (2) shall be determined by the standard of equipment of the apartment at the time of the conclusion of the lease. ... (4) The amounts specified in sub-section (2) shall decrease or increase in accordance with any variation of the 1976 Consumer Price Index published by the Austrian Central Office of Statistics, or the index replacing it, as compared with the time when this Federal Act comes into force. Such variation shall not be taken into account if it does not exceed 10% of the relevant reference figure. ... (5) If the basic rent agreed under sub-section (1) exceeds the appropriate amount for the size, type, layout, location, fittings and condition of the property, the agreement as to rent shall be invalid to the extent that it exceeds this maximum. If the basic rent has to be calculated according to the provisions of sub-sections (2) and (3), the agreement as to rent shall be invalid to the extent that it exceeds the maximum permitted in those sub-sections. ..." Section 18 "Increase in the basic rent (1) Where the costs of urgent, major maintenance work to be completed by the landlord, including interest and other costs relating to the securing of the necessary funds, within the meaning of section 3(3)1, are not covered by the sum of the rent surplus or rent deficit (Mietzinsreserven oder Mietzinsabgänge) constituted over the previous ten years, and exceed the expected rental income for the period of amortisation, the basic rent may be increased to cover the shortfall. To establish the amount of the requisite increase the following factors shall be taken into account: the amount of the rent surplus or rent deficit resulting from the previous ten years including any grant awarded in connection with the execution of the work; reasonable costs in respect of urgent maintenance work as set out in an estimate, including reasonable administrative and supervision costs in so far as these do not exceed 5% of the construction costs. These costs are to be reduced or increased, as the case may be, by any surplus or deficit (shortfall) under ; a period of amortisation not exceeding ten years, which is to be fixed, according to a fair assessment, with regard to the period in which in the light of experience and on the basis of ordinary durability such or similar work is to be repeated and having regard to the financial position of the landlord and all the tenants in the building; the landlord’s capital required to finance the "shortfall", whether such capital is his own or borrowed, together with the costs relating to the securing of the necessary funds, if they are borrowed, and the monthly repayments thereon as well as reasonable interest attaching thereto; an overall amount, freely determined (‘nach freier Überzeugung’: Article 273 of the Code of Civil Procedure), representing the costs of recurring maintenance work and regular payments due in respect of wealth tax plus surcharge attaching to the ownership of the property, as well as any monthly repayments covering capital and interest for earlier maintenance work financed in accordance with the provisions of section 3(3)1; the total amount of the monthly basic rents for the rented premises, which, for the purposes of standardising the calculation, shall be determined as follows: (a) for the rented dwellings each basic rent fixed pursuant to section 16(2) to (4); ... ..." Section 20 "Basic rent - rendering of accounts (1) The landlord shall provide a clear statement of the income and expenditure for each year. With regard to income the statement shall indicate: (a) the amounts paid to the landlord for the rented premises as basic rent (including increased rent and maintenance contributions); ... (e) the grants which the landlord receives in connection with maintenance or useful improvement work. With regard to expenditure the statement may indicate: (a) the amounts spent in respect of the ordinary maintenance (section 3) or useful improvement (sections 4 and 5) of the building, as evidenced by invoices and receipts; (b) 20% of the costs, as evidenced by invoices and receipts, which the landlord has incurred in respect of the ordinary maintenance (section 3) or useful improvement (sections 4 and 5) of the building in years in which the tenant has not been required to pay increased basic rent under section 18(2) or (3); (c) amounts which the landlord is required to pay in respect of wealth tax plus surcharge attaching to the ownership of the property. (2) The difference between the income and expenditure for a calendar year as indicated constitutes the rent surplus or rent deficit for the year, as the case may be. ..." Section 21 "Running costs and current taxes (1) The following costs incurred by the landlord shall be regarded as running costs: the supply of the premises with water ...; regular chimney-sweeping in accordance with the relevant regulations, drain-cleaning, waste disposal and pest control; the suitable lighting of parts of the building to which there is general access ...; appropriate fire insurance for the building ...; ... statutory civil liability insurance ... and insurance against damage caused by mains water, including corrosion; appropriate insurance for the building against other risks ...; the administrative costs referred to in section 22; ... ..." Section 44 "Exorbitant basic rent ... (2) The tenant under the head lease of an apartment rented before this Federal Act came into force may require the landlord to reduce the basic rent which was previously agreed if: the conditions set out in section 16(1)2 to 6 were not satisfied in respect of the apartment when the amount of the basic rent was agreed, and the agreed basic rent exceeds by more than a half the amount of the basic rent calculated under section 16(2) for the size and class of the apartment at the time of the tenancy agreement or a subsequent improvement to the standard of the premises, financed by the landlord. (3) If the tenant under the head lease requires the landlord to reduce the agreed basic rent, the agreement concerning the basic rent shall be invalid as from the first date on which rent becomes due following receipt of the request, to the extent that the basic rent exceeds one and a half times the amount calculated for the size and class of the apartment (sub-section (2)2). ..." Section 45 "Maintenance contribution (1) The maintenance contribution shall be calculated as follows: For an apartment, the amount actually paid as basic rent or increased basic rent shall be subtracted from two-thirds of the amount calculated under section 16(2)1 and (4) as the permissible basic rent; ... (2) If the rent which the tenant under the head lease has to pay for premises rented before the entry into force of the present Federal Act, under the previous legislation or an earlier agreement, is so low that a maintenance contribution results from the application of sub-section (1), the landlord may require the tenant under the head lease to pay the maintenance contribution calculated in accordance with sub-section (1), in addition to the basic rent or increased basic rent applying hitherto, in order to guarantee financial provision in advance for identifiable maintenance work required in the foreseeable future, provided that rented premises are located in a building the demolition of which has not been authorised or ordered by the housing authorities. The landlord must inform the tenant under the head lease in writing of this demand at the latest one month before the date for payment of rent on which he is claiming payment of the maintenance contribution and must undertake to use such contribution thus claimed within five years of its payment to finance maintenance work, the costs of which are not covered by the sums available from the rent surplus and to render a separate account (section 20(3)) relating to this expenditure on 30 June of each year. The written demand must further specify the amount of the basic rent or increased basic rent to be paid for the premises, the usable floor-space, and in the case of apartments, the class of apartment at the time of the conclusion of the tenancy agreement. ..." Subsequently the legislature amended various provisions of the 1981 Act. In particular it clarified sections 20 and 45 by providing for an improvement contribution. Provisions on the termination of leases The restrictions on the landlord’s right to terminate leases (see paragraph 28 above) have in substance been maintained by the 1981 Rent Act. Procedural provisions Certain measures affecting the tenancy, including a reduction of rent under section 44 of the 1981 Rent Act, require a judicial decision in the event of a dispute. According to section 37 the relevant procedure takes place before the competent District Court in non-contentious proceedings (Verfahren ausser Streitsachen). However, in certain municipalities, where this is justified by the number of cases, an administrative body may be set up to deal with the matter in the first place (section 38). In these municipalities the court procedure can be initiated only after the administrative decision has been given. The court procedure is not construed as an appeal against this decision, but as an entirely new procedure which has the effect of simply setting aside the administrative decision (sections 39 and 40). Assessment of the legislation and review of its constitutionality The 1981 Rent Act was adopted after heated debate in Parliament and in the media, in which representatives of the political parties and interest groups took part. This discussion has continued. Harsh criticism was expressed in particular concerning the extremely complicated structure of the legislation and the resultant administrative difficulties created for the landlords. As regards the introduction of square metre rents, the criticism focussed on the appropriateness of this system as such, the lack of differentiation according to the particular circumstances of the buildings concerned especially as to regional market differences, and the low amount of the statutory rents which in many cases are allegedly not sufficient to cover normal maintenance costs. It has also been suggested in many quarters that there is no justification for applying the system of square metre rents to existing leases and for leaving it to the tenants concerned to apply for a reduction. In the latter respect it was disputed whether this measure amounted to an expropriation and whether it was in conformity with the Constitution and the European Convention on Human Rights. Nevertheless, this matter has not been brought before the Constitutional Court. According to the relevant provisions of the Federal Constitution (Bundesverfassungsgesetz, Articles 140 and 144), the individuals concerned have no right to apply directly to this court if the civil courts are competent. The civil appellate courts can request a review by the Constitutional Court if they have doubts as to the constitutionality of a legal provision which they are required to apply in a particular case (Articles 89(2) and 140(1) of the Federal Constitution). However, as the present case shows, the competent civil courts had no such doubts concerning section 44 of the 1981 Rent Act. This is confirmed by a decision of the Supreme Court of 3 July 1984, in which it held that there was no doubt as to the constitutional validity of this provision. The Supreme Court stated as follows: "In passing the Rent Act, the legislature has, for reasons which are understandable from a historical point of view, limited freedom of contract with regard to the amount of rent payable for properties covered by the Act. Over a number of decades, always with reference to current needs, further properties were removed from the sphere of freely negotiated rents, determined by supply and demand. A relaxation was followed by the re-introduction of tighter controls (Rent (Amendment) Act, Official Gazette No. 281/1967; Amendment to the Rent Act, Official Gazette No. 409/1974), which led to a situation in which the legislature considered fundamental reform to be necessary. The legislature therefore restricted agreements on the basic rent for premises covered by the new legislation generally to the amount regarded as reasonable with reference to the size, type, layout, location, fittings and condition of the premises and for the sake of greater clarity laid down maximum limits for the most common types of apartments (section 16(2) of the Rent Act). At the same time, it regarded the fundamental aim of the transitional provisions as being to achieve the gradual and smoothest possible adjustment of existing leases to the new rules. In this connection, it was recognised that this adjustment would be at once the most problematic and at the same time the most urgent part of the transitional arrangements. ... ... Undeniably this constitutes an interference with existing leases. Indeed this was the legislature’s declared intention. In this connection it must not be overlooked that the obligation to pay rent for an apartment constitutes a continuing obligation and that in general such obligations are not entirely immune to certain adjustments and changes. ... Existing legal rights are not covered by the general protection afforded under the Constitution (VfSlg [Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes] 7423/1974: ‘There is no provision in the Federal Constitution which in principle prevents ordinary legislation from interfering with lawfully acquired rights’). The new provisions are entirely consistent with the legislative policy of bringing existing leases into line with the general system of the reform of the rent legislation and are intended to keep the hiatus between the old and new systems to the minimum. Section 44(2) and (3) of the Rent Act provide an appropriate mechanism for this adjustment. They also enable the landlord to receive 50% more rent than he could charge if the tenant gave notice and he had to re-let the apartment. These provisions are intended merely to prevent the sitting tenant from paying an ‘unduly high rent’ in relation to what is considered the reasonable square metre rent, if he is unable or unwilling to terminate the lease and rent another apartment. As the tenant can terminate the lease at any time, the right to obtain the fully agreed rent is in fact limited to the effective duration of the lease. When drafting the transitional provisions in section 44(2) and (3) of the Rent Act, the legislature was guided by the existing rules in Article 934 of the Civil Code, which were already in force when the existing leases were entered into, and by the ideas underlying the Consumer Protection Act ..., and, accordingly, allowed rent to be reduced to one and half times the amount of the newly established reasonable rent ... . This power to take the initiative vested in the tenant must not be regarded in isolation but must be seen in the whole context of the new legislation. In granting it, the legislature has neither acted arbitrarily nor exceeded its powers. It has remained within the bounds of the freedom to form legislative policy which, in case of doubt, it must be assumed to have. To place too many limits on this freedom would lead to inflexibility with regard to legal situations and hamper innovations even where necessary. The possibility available to tenants of applying for a reduction in rent under section 44(2) and (3) of the Rent Act is clearly disadvantageous to landlords who have concluded an agreement on the amount of rent to be paid by the tenant under existing legislation and now find that their confidence in the law has been misplaced. It should however be recognised that this is counterbalanced by a series of provisions as a result of which rent is no longer frozen at the 1914 level (e.g. section 12(3) or section 46(2) of the Rent Act). In addition the possibility of charging maintenance contributions under section 45 of the Rent Act is a measure which facilitates the adjustment of existing leases. Of course the new system may bring more disadvantages for some landlords and more advantages for others. However, at all events, it is merely a restriction on the right of property (Eigentumsbeschränkung) since the rent for a sitting tenant may still exceed the amount chargeable under the new legislation by 50%. The legislature may authorise an expropriation only if such a measure serves the public good and the general interest (see, inter alia, VfSlg 8326/1978; 8083/1977; 7321/1974). Article 5 of the Basic Law provides that an expropriation may be effected only if it is justified in the general interest (see, inter alia, VfSlg 8212/1977; 7238/1973). Although the first sentence of Article 5 of the Basic Law does indeed apply to restrictions on the right of property, the legislature can lay down such restrictions without fear of acting in breach of the Constitution, provided that they do not threaten the very substance of the fundamental right to the inviolability of property or otherwise violate a constitutional principle binding on the legislature (VfSlg 9189/1981; 8981/1980 etc). But this is not the case of the transitional provisions contained in section 44(2) and (3) of the act which were required by the public interest and for the common good, because they fit into the balanced structure designed to cater for the adjustment of the old system to the new one and are part of the necessary harmonisation leading to the desired objective. Under Article 1 of Protocol No. 1 (P1-1) to the Convention on Human Rights, restrictions on the right of property must be in accordance with the general interest. In its decision of 16 December 1983 (G 46/82-15), the Constitutional Court confirmed the principle laid down in previous decisions that restrictions on the right of property which take account of these principles are not unconstitutional." (Österreichische Immobilien-Zeitung 1983, No. 18, pp. 331-333)

Austria

The facts of the case may be summarised as follows: The applicant, the National Union of Belgian Police, has its headquarters at Brussels-Schaerbeek. The union descends from the Belgian Police Federation founded in 1922 and changed its name in 1930; in 1939 it was constituted in the form of a non-profit-making association within the meaning of the Act of 27 June 1921. Associations of this kind have capacity in civil law. The applicant union is open to all members of the municipal police, including rural policemen, regardless of rank, but members of the two State police forces, the criminal police attached to the prosecuting authorities (police judiciaire près les parquets) and the gendarmerie, may not at present belong to it. It numbers police superintendents and deputy superintendents amongst its members. The list of the applicant union’s members deposited on 21 July 1971, in accordance with law, contained the names of 99 persons; this was not the whole of its membership but only the "active members", that is to say, those "who are delegated by the sections to represent them at the general meeting" and are alone entitled to vote (Article 5 of the applicant union’s articles of association annexed to the Moniteur belge of 8 July 1960). The applicant union claims to have had 7,226 paid-up members in 1961 and that their numbers fell to 6,162 in 1971, 6,011 in 1972, 5,896 in 1973 and 5,748 in 1974. It is alleged by the applicant union that this steep decline of some 20% was due specially to the trade union consultation policy contested in the present case. The Government does not dispute the fact of the decline but does not attribute it to the cause put forward by the applicant. There being about 12,000 men serving in the municipal police – whose establishment provides for 13,722 -, at the end of 1974 the applicant union represented almost half of the members of the force. The municipal police, whose members are classified as municipal officials, is entrusted both with functions of an administrative and crime-deterrent character, as well as with criminal-police functions. In carrying out its administrative and crime-deterrent duties, the municipal police is directly subject to the municipal authorities and placed under the orders of the burgomasters; on the other hand, in the exercise of its criminal-police functions, it is subject solely to the authority of the State and more especially the judicial authorities (autorités judiciaires). The two State police forces are distinct from the municipal police. The gendarmerie, itself also vested with both administrative police duties (maintenance of order) and criminal-police duties, can in addition discharge military duties in certain circumstances and is organised on military lines. The criminal police attached to the prosecuting authorities (la police judiciaire près les parquets) has, for its part, exclusively criminal-police (de police judiciaire) duties. The municipal police force amounts to some 13% of municipal staff and less than 10% of all municipal and provincial staff. At the end of 1974, municipal staff totalled 88,809 officials to which number were added the staff of municipal social welfare boards (28,999), inter-communal associations (12,156) and provinces (14,260). The gendarmerie and criminal police numbered respectively 13,392 and 827 members as of 30 June 1970. Under Article 3 of its articles of association, the aim of the applicant union is "any activity directly or indirectly relating to the study, protection, development, improvement and progress of any matter concerning the rights and occupational interests of the Belgian police, particularly by means of trade union action." Freedom of association is recognised in <COUNTRY> by Article 20 of the Constitution and is guaranteed in all fields by the Act of 24 May 1921. Furthermore, <COUNTRY> is a party to International Labour Organisation Conventions no. 87 concerning Freedom of Association and Protection of the Right to Organise (Act of 13 July 1951) and no. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (Act of 20 November 1953). These various provisions safeguard, inter alia, the right freely to form trade unions, the right to join or not to join them, the right of trade union members freely to elect trade union representatives and the right of trade unions freely to organise their administration. While therefore in Belgian law freedom is the rule for trade unions in matters of founding, organising, recruitment and propaganda, the same is not true of consultation of trade unions by public authorities acting as employers. In order to avoid having to negotiate with an ever increasing number of parties, the public authorities have in fact fixed certain criteria for selection based on the idea of representativeness of trade unions. They have also introduced this principle in several Acts dealing with relations between employees and employers in the private sector, for example the Act of 17 July 1957 on the Health and Safety of Workers and the Hygiene of Places of Work and Working Conditions, the Act of 29 May 1962 setting up a National Labour Council and the Act of 5 December 1968 on Collective Labour Agreements and Joint Committees. Apart from a Decree of 26 September 1946 referred to below (paragraph 19), the first regulation on trade union consultation in the public sector dates back to a Royal Decree of 20 June 1955 applicable to State officials exclusively. The Royal Decree confines consultation to organisations having a seat on a "trade union advisory committee" set up within each ministerial department and a seat in a "general trade union advisory committee" operating under the aegis of the Prime Minister. These committees are consulted on all proposals concerning the status of State officials, organisation of services and work, safety, health and improvement of places of work. The representative character of these trade unions is assessed at two levels, first at the level of the different ministerial departments and secondly at the level of the State administration as a whole. The sole criterion for representativeness is the number of members, determined by elections held in principle every four years. In fact, the last trade union elections were held in 1959. The elections due to be held in 1963 were postponed sine die at the request of the large trade union federations, which had obtained a low percentage of votes in 1959. In the case of the criminal police attached to the prosecuting authorities, the Government has reserved the benefit of consultation for the organisations which are confined to members of this force (Royal Decree of 21 February 1956); the Government states that in fact these organisations are in turn affiliated to the three large Belgian trade union federations. As regards the gendarmerie, Section 16 para. 2 of the Act of 14 January 1975 provides that members of the gendarmerie may join only occupational associations composed solely of gendarmes. The National Staff Union of the gendarmerie has been recognised as the sole organisation representing members of the corps. There are no general regulations governing relations of municipal and provincial authorities with trade unions. The municipal authorities are free to set up trade union consultation if they so wish. Some of them, such as the towns of Antwerp, Charleroi, Mons and Verviers, have done so and set up commitees - generally organised like those which operate at national level - on which sit delegates of certain representative trade union organisations. Otherwise there is no organised consultation but trade unions may, as everywhere else in the country, lodge claims or make representations on behalf of a member without any condition of representativeness. The position proves to be very different as regards relations between the Ministry of the Interior, which is the supervisory authority, and the staff of municipalities and provinces. After a first attempt (a Bill of 1957) had failed, trade union consultation was introduced at this level by an Act of 27 July 1961. Prior to that there had been no statutory provisions. A Decree issued by the Regent on 26 September 1946 had set up a trade union consultative committee at the Ministry of the Interior. On this committee there were, amongst others, delegates of the Union of National Associations of Civil Servants and Municipal Officials, including the secretary general of the applicant union; but the Government states that the commitee was of little importance and soon ceased to meet. Section 9 of the Act of 27 July 1961 reads as follows: "The general arrangements to be made by the King ... shall be decreed after consulting representatives of those organisations that best represent the staff of the provinces and municipalities ... The forms of such consultation shall be determined by the King." Under the same section the representative organisations are to be consulted on the following subjects: staffing, recruitment and promotion conditions for municipal staff, pecuniary status and salary scales for the staff of provinces and municipalities, general rules governing certain allowances and bonuses, rules governing the adjustment of pay scales and pecuniary status in line with the changes which have occurred since 1 January 1960 in the pecuniary status of staff of the ministries, conditions for appointment to the posts of police superintendent and deputy superintendent and criteria for up-grading. Consultation is important on two counts. First, the Government is bound to ask for the opinion of the representative organisations and, secondly, in the course of consultation it informs the representative organisations of its proposals in order that they may make known their opinions before any decision is reached. The consultation machinery is set in motion for the preparation of every rule-making instrument - Bill, Royal Decree, ministerial decree or circular - which relates to the matters listed above. Royal Decrees and ministerial circulars have been formulated in this way, usually concerning the entire staff of provinces and municipalities, but several of them containing measures peculiar to the municipal police and some valid only for that force. If an organisation is not recognised as representative, it is barred from the consultation procedure but may nonetheless, inter alia, submit claims to the supervisory authority, ask to be heard by it, refer cases to it and make representations on behalf of its members. The modalities of consultation of trade unions recognised as representative were first fixed by a Royal Decree of 23 October 1961. This Decree set up a trade union consultation committee attached to the Ministry of the Interior, on which the only trade union delegates were the representatives of the four large trade union federations listed in the following paragraph (Article 2). The applicant union applied to the Conseil d’Etat for a declaration of annulment of the Decree. However, on the day of the hearing, 15 October 1964, the Moniteur belge published a Royal Decree of 12 October 1964 withdrawing the provision which was being challenged. The case was then removed from the list of the Conseil d’Etat. A Royal Decree of 2 August 1966 re-organised the trade union consultation in question. While the consultation committee remained, its membership was radically changed in respect of both the number and appointment of representatives. The representatives were no longer to be appointed by specified trade unions but by "the organisations most representative of the staff of the provinces and municipalities". Article 2 para. 2 specified what was to be understood by "most representative": "Those organisations which are open to all staff of the provinces and municipalities and which protect such staff’s occupational interests shall be deemed to be the organisations most representative thereof. Each such organisation shall make itself known by sending to the Minister of the Interior by registered post, within forty days of publication of this Decree in the Moniteur belge, a copy of its articles of association and a list of its officers. The Minister of the Interior shall verify whether it complies with the conditions required and shall notify it of his decision." Four trade unions, of which the first two have since merged, were recognised as meeting these criteria: the Liberal Union of Civil Servants; the Liberal Public Services Union (a member of the Affiliated Belgian Trade Unions); the Affiliated Public Services Unions, Provincial and Municipal Sector (a member of the Belgian General Federation of Labour); and the Affiliated Christian Public Services Unions, Provincial and Municipal Sector (a member of the Christian Trade Unions). It is difficult to specify the number of persons affiliated in these various organisations. Some of the applicant union’s members are also affiliated to one or other of the large federations. The Government says that two of these federations have 1,500 policemen as members. At least two of the trade union organisations recognised as representative have technical committees for the municipal police, which, as occasion arises, deal with problems particular to this force. On 22 September 1966, the applicant union asked the Minister of the Interior to consider it as one of the most representative organisations of staff of provinces and municipalities for the purposes of the implementation of the above-mentioned Royal Decree. By letter of 14 February 1967 the Minister replied as follows: "From the documents you have submitted it does not appear that your organisation fulfils the required conditions, namely that it should be open to all the staff of the provinces and municipalities and protect such staff’s occupational interests". Prior to that, on 25 October 1966, the applicant union had applied to the Conseil d’Etat for a declaration of annulment of the Royal Decree of 2 August 1966, alleging that Section 9 of the Act of 27 July 1961 had been contravened. The applicant contended that Section 9, which was drafted in very wide terms, implied that the organisations grouping officials by category and without regard for their opinions should, subject to their being the most representative organisations, be consulted on an equal footing with the organisations in which officials joined together according to their political feelings and without distinction as to their occupations. In the applicant’s view, the preparatory work to Section 9 showed that consultation should extend to every representative organisation which protected the occupational interests of staff governed by particular staff regulations. Claiming that three quarters of the men in the municipal police belonged to it and that the force had its own regulations and constituted a corps within the personnel of the municipalities; the applicant thus maintained that it was representative in a twofold way, the number of its members as compared with the number of municipal policemen and the special character of their functions. In the submission of the applicant, the King had acted ultra vires in stipulating that the condition "representative" must be confined to organisations open to the whole of provincial and municipal staff. The applicant union did not refer to Articles 11 and 14 (art. 11, art. 14) of the Convention nor to Article 20 of the Belgian Constitution. It submitted, however, albeit in a subsidiary way, that Article 2 para. 2 of the Royal Decree violated the principle of trade union freedom in that it made it "obligatory" for police officers to join "political" trade unions. The Minister of the Interior submitted in reply that Section 9 para. 1 of the Act of 27 July 1961 provided explicitly for consultation of the organisations most representative of the staff of the provinces and municipalities. The Minister added that the Conseil d’Etat, in its opinion no. L 94 38/2, had taken the view that there was no objection to considering as the most representative organisations those which "included staff members of all categories". The Minister inferred from this that the application was ill-founded. The Conseil d’Etat dismissed the application on 6 November 1969. It held that "while the criterion of number advanced by the applicant was acceptable when applied to workers in the private sector or even to civil servants and officials in large government departments belonging to the same hierarchical structure and subject to the same regulations, it cannot be accepted in the present case since the officers concerned belong to widely different categories which have no link between them, some being governed by separate regulations". It further considered "that this diversity of categories and regulations has the effect of making the consultation of organisations representing staff much more difficult; that, in each category, the persons concerned will tend to claim as many advantages as possible for themselves without paying any heed to the implications of measures on which they are consulted for the position of the other staff members, whereas the authority has to take such implications into account; that the consultation of the organisations by the Government cannot in most cases serve any useful purpose unless it concerns organisations which comprise staff belonging to all categories and which therefore have to strike some balance in their claims in order to protect the interests of all their members". It found "that in considering the organisations representing the occupational interests of all staff of the provinces and municipalities to be the organisations most representative of such staff, the Decree being challenged is not contrary to the intention of the statute"; "that the applicant is in error in still maintaining that the contested provision is contrary to the principle of trade union freedom by making it obligatory for police officers to join political trade unions; that in fact the contested provision does not oblige police officers to join any trade union nor any particular trade union." The judgment ended with the conclusion "that in the organisation of public services the King may confine the consultation of occupational organisations to whichever organisations are the most representative of the staff as a whole, which procedure has repeatedly been given statutory confirmation" (translated from Recueil des arrêts et avis du Conseil d’Etat, 1969, pp. 941-942). In the meantime a Royal Decree of 20 August 1969 had abolished the committee provided for in the Decree of 2 August 1966, but preserved consultation of the most representative organisations as provided in Article 2 para. 2 of the 1966 Decree; since then, such consultation takes place in writing. An Act of 19 December 1974 re-organised the relations between public authorities and trade unions of officials in the service of those authorities. Section I of this Act provides that the system which the Act establishes may be made applicable by the King – with certain exceptions one of which concerns the "members of the armed forces" - not only to the staff "of the administration and other government departments", particularly of the "services which assist the judicial authorities (pouvoir judiciaire)", but also to the staff of the provinces and municipalities including the municipal police. The Act establishes a procedure of negotiation (Chapter II) and a procedure of consultation (Chapter III). For negotiation, the Act provides that the King shall establish three "general committees" namely, "the Committee for the National Public Services", "the Committee for Provincial and Local Public Services", and "the Joint Committee for all Public Services" (Section 3), as well as "special committees" among which will be committees competent for "questions relating to the staff" of provincial or municipal services (Section 4). The King shall determine "the composition and operation" of these committees (Section 5) on which only "representative ... organisations" shall sit from the trade union side (Section 6). Section 7 defines in detail the criteria of representativeness for each of the three general committees, Section 8 for the special committees. Consultation shall take place within "consultation committees" set up by the King for "services and groups of services comprising not less than twenty-five officials" (Section 10). Section 12 provides that "the trade union organisations represented on a special negotiating committee shall be entitled to appoint delegates to sit on the consultation committees set up within the competence of that committee". There will be negotiations on "the basic regulations" concerning "staff administration matters", "pecuniary status", "pension schemes", "relations with trade union organisations", and "the organisation of the social services"; on "regulations, internal measures, or directives, of a general nature relating to the subsequent fixing of staff structures, to working hours or to the organisation of work"; lastly, on Bills concerning any of these various matters (Section 2). There will be consultation for "decisions determining the staff structure of the services covered by the consultation committee in question", "regulations which the King has not specified as basic regulations", etc. (Section 11). In its observations of 18 February 1975, the applicant union expressed the opinion that the present case would "probably become pointless" "if the Act of 19 December 1974 became applicable to municipal officials". At hearings of 8 and 9 May 1975, the Government stressed that the application of the 1974 Act to provincial and municipal staff would not be an easy matter and would require more time. The Government consider that it may in any case be inferred from the text and the preparatory work of the Act that even when it becomes applicable to such staff it will not change the trade union status in a way favourable to category-based unions. In its view, the applicant union will not be entitled to sit on a general or special negotiating committee. The applicant accordingly now feels that "it is doubtful wether the new law will give just satisfaction to the union" and has so informed the Court through the Commission. In its application lodged with the Commission on 5 March 1970, the National Union of Belgian Police alleged violation of Articles 11 and 14 of the Convention in conjunction with Article 17 (art. 17+11, art. 17+14), in that the Belgian authorities refused to recognise it as a representative organisation, thus debarring it from the consultation provided for by the Act of 27 July 1961. The union also claimed damages which it provisionally assessed at 100,000 Belgian francs. The Commission declared the application admissible by a final decision of 8 February 1972, after having rejected on 28 May 1971 certain of the preliminary objections made by the respondent Government. During the examination of the merits the applicant union confined itself to relying on Article 11 (art. 11), both on its own and in conjunction with Article 14 (art. 14+11). In its report of 27 May 1974, the Commission expressed the opinion: - unanimously, that the State, whether acting as "legislator" or "employer", assumes obligations within the scope of Article 11 para. 1 (art. 11-1) of the Convention; - by eight votes to five, that the right to consultation and, more generally, freedom to bargain collectively are important and even essential elements of trade union action falling within the scope of Article 11 para. 1 (art. 11-1); - by eight votes to five, that this right to consultation is not however unlimited, the limit being, in the case of the applicant union, the existence of an objective criterion for representativeness; - unanimously, that the regulations at issue on trade union consultation in <COUNTRY> do not constitute a breach of Article 11 para. 1 (art. 11-1) of the Convention; - unanimously, that the difference in treatment introduced by Belgian legislation between different categories of unions is justified in the circumstances of the case and is consistent with Articles 11 and 14 (art. 14+11) of the Convention taken together. The report contains a separate concurring opinion to which four other members of the Commission subscribed. The Government made the following final submissions at the oral hearing on 8 May 1975 in the afternoon: "May it please the Court: - in the first place, Article 11 (art. 11) does not apply in the present case and there is therefore no reason to consider whether there has been violation of Article 14, taken in conjunction with Article 11 (art. 14+11); - alternatively, there has been violation neither of Article 11, (art. 11), nor of Article 14 in conjunction with Article 11 (art. 14+11)."

Belgium

PARTICULAR CIRCUMSTANCES OF THE CASE Background: the first custody proceedings and the applicant’s first placement in a child psychiatric ward The applicant, Jon Nielsen, is a Danish citizen, born in 1971. His parents lived together from 1968 until 1973. They were not married and, in accordance with Danish law, only the mother had parental rights over the child. After the parents separated in 1973, the applicant remained with the mother and the father had access to him on a "gentlemen’s agreement" basis. However, this arrangement did not function well and in 1974 the father obtained a specific right of access through the competent authorities. It appears that a closer relationship developed between the applicant and his father during the following years. The Danish legislation at the time, however, did not provide special procedures for having the custody rights transferred from the mother to the father, and the father introduced an application to the European Commission of Human Rights (no. 7658/76) complaining about his situation on 21 September 1976. During the proceedings before the Commission, the Custody and Guardianship of Children Act 1976 (myndighedsloven, "the 1976 Act", see paragraphs 40-41 below) was amended with effect from 1 October 1978, so that a court might vest parental custody in the father of a child born out of wedlock, when certain conditions were fulfilled. As a result the Commission, on 5 December 1978, rejected the application on the ground that the father could no longer claim to be a victim of an alleged violation of the Convention (Decisions and Reports no. 15, pp. 128-130). The father had regular access to the applicant until the summer of 1979, when the applicant apparently refused to return to the mother after a two-week holiday with the father. The social authorities were contacted and, with the consent of all parties, the applicant was placed in a children’s home. However, he disappeared from the home and returned to the father. On 6 August 1979, the father instituted proceedings before the City Court of Ballerup (Ballerup ret) to have the custody rights transferred to him according to the new law. Father and child also went "underground" until 8 October 1979, when the father was arrested by the police. He was released on 12 October 1979. On 9 October, after the father’s arrest, the social authorities, with the consent of the mother, placed the applicant in the Department of Child Psychiatry in the county hospital, Nordvang. On 23 October, the father’s right of access was suspended. The father’s appeal against this decision was rejected by the Ministry of Justice on 12 November. The applicant disappeared from Nordvang on 11 December 1979 and thereafter started to live in hiding with his father again. In the custody proceedings before the City Court of Ballerup (see paragraph 12 above), the court held on 11 July 1980 that a transfer of custody to the father was not in the interest of the child. The applicant’s father appealed against this judgment to the Court of Appeal for Eastern <COUNTRY> (Østre Landsret). On 25 November 1980, the parties agreed that the applicant should undergo a child psychiatric examination by Professor Tolstrup. This examination resulted in a report of 16 February 1981, in which Professor Tolstrup concluded (translation from Danish): "After considering the case, I find it in the best interest of the child that the custody rights remain with the mother. Since the boy is developing nervously it is recommended that he and the mother, after [the applicant] has returned to her, get child psychiatric support. ..." On 9 March 1981, the Court of Appeal upheld the City Court’s judgment. The applicant nevertheless remained in hiding with his father, staying with various families in <COUNTRY>. The institution of the second custody proceedings and the applicant’s placement in the Child Psychiatric Ward of the State Hospital In November 1982, after having lived "underground" for more than 3 years, the applicant’s father again instituted proceedings before the City Court of Ballerup in order to have the custody rights transferred to him. Since he was wanted by the police, on suspicion of having kidnapped the applicant, the father did not attend the hearings in person, but only through his lawyer. Before the City Court the applicant’s mother maintained that the applicant had been harmed due to the abnormal circumstances under which he had lived with his father and that she would accept Professor Tolstrup’s recommendation and obtain support from the Child Psychiatric Ward (den børnepsykiatriske afdeling) of the State Hospital (Rigshospitalet), a university and general hospital, for a transitional period (see paragraph 15 above). In its judgment of 11 April 1983, the City Court found that the circumstances of the case did not reveal a need for a transfer of the custody rights. The applicant’s father appealed to the Court of Appeal, but on 22 September 1983 the Court of Appeal upheld the City Court’s judgment. Leave was subsequently granted by the Ministry of Justice to bring the case before the Supreme Court (Højesteret) (see paragraph 37 below). Directly after the hearing in the Court of Appeal on 22 September 1983, at which both the father and the applicant were present, the father was arrested by the police and charged with depriving the mother of the exercise of her parental rights in violation of section 215, read in conjunction with section 261 paragraphs 1 and 2, of the Danish Penal Code. The applicant was placed in a children’s home. The mother, advised by the Social Welfare Committee of Herlev County and Professor Tolstrup, and with the recommendation of her family doctor, requested that the applicant, who was by then 12 years old, be admitted to the State Hospital’s Child Psychiatric Ward since it was clear that he did not want to stay with her. On 26 September 1983, the applicant was admitted to the Ward by Professor Tolstrup who was Chief Physician at the Ward. On 29 September, the Social Welfare Committee recorded its approval, pursuant to section 33 of the Social Assistance Act (see paragraph 44 below), that the applicant was to be placed away from home in accordance with his mother’s wish. According to Professor Tolstrup, who was responsible for the applicant’s treatment at the State Hospital, the procedure followed in connection with admission was the usual one: the holder of the parental rights made the request, the family doctor recommended admission and the responsible chief physician of the ward accepted to admit the applicant. The applicant’s challenge of the lawfulness of his placement in the Child Psychiatric Ward By letter of 23 December 1983 to the Ministry of Justice, the applicant’s father, on behalf of the applicant, questioned the lawfulness of the applicant’s "detention" at the State Hospital contrary to the applicant’s wish. He maintained, inter alia, that the provisions of the hospitalisation of Mentally Ill Persons Act 1938 (Lov om sindssyge personers hospitalsophold, Act no. 118 of 13 April 1938, as amended by Act no. 225 of 7 June 1972 - "the 1938 Act"; see paragraphs 47-50 below) regarding compulsory admission to hospital had not been observed. The Ministry of Justice submitted the matter to the Chief Physician at the Child Psychiatric Ward. In accordance with the information he gave, the Ministry replied, on 28 December 1983, that the applicant had not been admitted in accordance with the 1938 Act, but on the basis of a decision by his mother as holder of the custody rights, and that it could not make a determination in the matter. On 1 January 1984, the applicant’s representatives nevertheless petitioned the Copenhagen City Court (Københavns byret) under chapter 43a of the Administration of Justice Act (retsplejeloven) (see paragraph 39 below) for a decision on the lawfulness of the applicant’s placement in the State Hospital. The defendant, the Ministry of Justice, pleaded dismissal, maintaining that the applicant had not been subjected to administrative deprivation of liberty under the 1938 Act. In its judgment of 6 January 1984, the Copenhagen City Court upheld the Ministry of Justice’s plea for dismissal on the following grounds (translation from Danish): "Considering that [the applicant] ... has been admitted to the Child Psychiatric Ward of the State Hospital, Copenhagen, on the basis of a decision made by [his mother], who is the holder of parental rights, [the applicant’s] detention at the State Hospital is not covered by the [1938] Act and it is therefore not subject to judicial review according to chapter 43a of the Administration of Justice Act. For this very reason the petition must be dismissed." The applicant appealed, through the father, to the Court of Appeal arguing, in particular, that if he had not been a minor he could have challenged the lawfulness of his detention in the State Hospital before the courts. He added that, although the holder of the custody rights had, according to section 19 of the 1976 Act (see paragraph 40 below), an extensive right to make decisions concerning the child, such a right should be subject to certain restrictions; a totally involuntary detention ought to be an interference which could only be carried out administratively and thus under the conditions mentioned in Article 71 of the Danish Constitution (see paragraph 38 below), irrespective of any decision by his mother. The State Attorney (Kammeradvokaten) again maintained that the case did not concern administrative deprivation of liberty and was thus outside the scope of chapter 43a of the Administration of Justice Act. In the alternative he alleged that, if the case disclosed deprivation of liberty within the meaning of chapter 43a, the father would be unable to act on behalf of the child since at that time he had no, and had never had any, parental rights over the child. Rejecting the State Attorney’s latter argument, the Court of Appeal stated in its judgment of 15 February 1984 (translation from Danish): "The question whether a minor should be subjected to treatment in a hospital is normally decided by the holder of parental rights and such measures cannot be challenged by means of chapter 43a of the Administration of Justice Act. Concerning the treatment of mentally deranged persons, inter alia in public hospitals, special rules apply according to the [1938 Act], cf. chapter 43a of the Administration of Justice Act. From what has been established in this case it appears that [the applicant] does not suffer from any mental illness and according to the above there has been no question of admittance for treatment of a mental illness. The decision to admit [the applicant] to the Child Psychiatric Ward of the State Hospital after the disturbances he has been through and the decision on his temporary stay there were taken by his mother, who has the parental rights over him. The appellant’s claim for judicial review under chapter 43a of the Administration of Justice Act cannot therefore be granted and the decision of the Copenhagen City Court to dismiss the case is upheld." The applicant’s representatives asked the Ministry of Justice, according to section 371 of the Administration of Justice Act, for leave to appeal to the Supreme Court. However, on 14 March 1984 the Ministry refused leave since the Ministry was of the opinion that the judgment would not be overruled by the Supreme Court. The National Health Authority’s investigation On 23 December 1983, Mr Jacobsen, as representative of the father, also sent copies of the complaints to the Ministry of Justice to the National Health Authority (Sundhedsstyrelsen, an authority under the Ministry of the Interior). On 10 January 1984, he requested that this authority carry out an investigation of whether the applicant was forced to visit his mother and whether Professor Tolstrup could lawfully prevent him from visiting the applicant. The National Health Authority found the legal issues raised by the father to be beyond its authority, but decided nevertheless, on its own account, to take up the question of how the applicant had been treated from a medical point of view. In the course of the National Health Authority’s investigation Professor Tolstrup submitted, on 6 January 1984, the following report regarding the circumstances of the applicant’s stay at the State Hospital to the Medical Health Officer of Copenhagen (Københavns Stadslæge) (translation from Danish): "[The applicant] has expressed his dislike of staying here, but at no time has he attempted to run away. We have not been able and have not wanted to prevent him from running away, which he could have done, inter alia, when he left the Ward together with the other children, e.g. to visit museums or to go for a hair cut. Also in this respect he has been in hospital on the same terms as the other patients of the Ward. ... The treatment involves environmental therapy at the Ward and regular talks with [the applicant]. ... At no time has he been given treatment involving medication. Since 23 October 1983, his mother has visited the Ward regularly during the usual visiting hours on Sundays and Wednesdays. Since 11 November 1983 [the applicant] has visited his mother at home. The visits were at first short, but since 10 December 1983 he has been able to spend the weekends there. Christmas Eve and Christmas Day were spent with his mother and so was New Year’s Day. ... I wish to add that the patients at the Ward are not ‘compulsorily detained’ in the usual sense of the expression in [the 1938 Act]. The Child Psychiatric Ward of the State Hospital is an ordinary hospital ward run in principle on the same conditions as the other wards of the State Hospital. As the Ward is situated on the seventh floor in a building with a number of somatic wards, the main entrance of each block has a latch (smæklås) to prevent the children of the ward, some of whom may be inclined to rush around impulsively, from running about in the hospital or running into town, and possibly being a nuisance to the patients in other wards of the hospital or exposing themselves to danger. This measure is to be compared with the locked front door in a family house. As mentioned above, the children often go out with the staff, e.g. to playgrounds or to visit museums. During their stay in hospital the children are not normally confined to bed, and the Ward offers many possibilities for different activities under homelike conditions. Thus it is entirely misleading ... to talk about ‘institutional detention’." The treatment given to the applicant at the Hospital was explained in more detail by Professor Tolstrup in a report to the Danish Supreme Court on 19 June 1984 (see paragraph 37 below) (translation from Danish): "The treatment consisted of environmental therapy and individual talks. In the environmental treatment endeavours were made to let him experience relaxed, homelike surroundings together with adults who were neutral in relation to the previous conflicts concerning custody. Endeavours were also made to protect him from pressure by the media, which however could not be completely averted, because when he went outside the Ward he could read the headlines of the newspapers, and through a completely free and very extensive correspondence he could follow the media reports. As a whole, Jon seemed to be happy and secure in the Ward, and the objective of the environment therapy had been largely achieved at the time of discharge. However, at that time Jon had a continued need for ambulatory therapy of individual talks." In his report, Professor Tolstrup also pointed out that the applicant had been allowed to pay visits to his father in prison every other week since November 1983 (in total seven such visits took place). The applicant’s development in the course of his treatment at the Ward was described by Professor Tolstrup in a report on 7 March 1984 to the Social Welfare Committee of Herlev County (translation from Danish): "... During the treatment, including the environmental therapy and the personal talks, at the Child Psychiatric Ward since New Year 1984, [the applicant] has continued to grow more relaxed, more extrovert and spontaneous and he is now able to show his feelings better. This applies to his relationships both with the staff and with the other children in the Ward. During the entire stay at the hospital he has as before, apart from the first couple of days, been allowed to move about freely just like the other children. In other words, he has gone to the library on his own, has joined visits to museums in town, been to the swimming pool, skating rink, etc. His relationship with his mother also underwent a similar favourable development in the same period. He saw his mother every weekend and participated in the family life together with his mother, her friend, and his sister. At first he was a bit shy to leave his home, apparently for fear of being recognised. On 2 February 1984, he started school again in his old class, and the Ward prepared his return together with the school. He has taken up contact with his old school mates when visiting his mother during weekends. In connection with the school’s winter holiday, he had his longest stay with his mother from Friday 10 February until Wednesday 15 February 1984. During this holiday, the whole family went for a couple of days to his mother’s parents in Jutland. It was obvious that [the applicant] enjoyed this family outing ..." As part of the National Health Authority’s investigation the Medical Health Officer of Copenhagen was also requested to visit the ward in which the applicant was placed. In her report of 8 February 1984, she stated (translation from Danish): "The Child Psychiatric Ward currently keeps 18 children in continuous treatment, the average period of therapy being about five or six months. ... [The applicant] was not at home while I was there but in school. During the past weeks, he has been attending the same elementary school he used to go to and where he apparently feels at ease. Every day he goes to and from the school by cab, alone. ... Much is done to make the children feel at home. [The applicant] takes swimming lessons together with other children in the Ward accompanied by one of the staff members. He has also gone sledge riding and may visit school friends. The entrance door to all children’s wards is locked, partly to prevent the young children from running all over the hospital premises where they might hurt themselves in lifts or lose their way. The entrance door is locked also in order to minimise the substantial risk of theft. [The applicant] is allowed to leave the Ward if he asks for permission to go, for instance, to the library. He moves around unaccompanied on these occasions. My conclusion is that [the applicant] is staying in an environment as similar as possible to a real home and that he is by no means kept there against his will. On the contrary, he is allowed to move about outside the Ward all by himself or in the company of staff members and/or other children ..." In its final report of 15 February 1984, the National Health Authority concluded (translation from Danish): "On the present material the National Health Authority does not find any reason for not approving Professor Tolstrup’s medical evaluation the essence of which was that [the applicant] was trapped in a neurotic state requiring treatment, a development which the Authority views as the result of the most unusual circumstances in which [the applicant] had been living with his father during the past few years. If these circumstances had continued, the risk of a further move towards a personality-stunting, chronically neurotic state of mind would, in the opinion of the Authority, have been extremely likely. Nor does the National Health Authority see any reason for criticising the medical treatment which [the applicant] received while hospitalised and which was designed to integrate him in normal human relationships ..., and included talks at regular intervals with [the applicant] and his mother, since the Authority, things being what they were, would find it irreconcilable with the welfare of [the applicant] to deny him relevant treatment. According to the information available to the Authority, [the applicant] is now so well that he may probably be discharged by the end of February 1984. By then, the period of his hospitalisation will not have exceeded the average period. While hospitalised [the applicant] has been allowed to visit his father regularly at Vestre Fængsel [prison]. To sum up: The National Health Authority sees no reason for criticising Professor Tolstrup or the Child Psychiatric Ward of the State Hospital for their medical treatment of [the applicant]." The applicant has not repudiated the above statements (see paragraphs 28-31). However his representative has added before the Commission that: "The Child Psychiatric Ward is definitely a closed ward. The door to the Ward was locked and [the applicant] was totally unable to receive visitors except with the agreement and under the surveillance of the staff at the Ward ... [The applicant] was unable to leave the hospital if he so wished. ... [He] was not permitted to phone [his father’s counsel] or his father, who was in prison charged with the kidnapping of the applicant, who had actually been the active party in the kidnapping. [The applicant] was under almost constant surveillance: he was unable to make social contacts; persons from outside the hospital were unable to get in contact with him without special permission ..." According to information submitted by the Government in response to a request by the Court, no children had ever been admitted under the compulsory procedure in the 1938 Act (see paragraph 47 below) to the ward in which the applicant was placed and this ward had never had any patients suffering from mental illnesses of a psychotic nature. The applicant’s discharge from the Child Psychiatric Ward It was planned that the applicant should be discharged to his mother’s home on 22 February 1984. However, on that day he disappeared from the hospital. His mother reported the disappearance to the police. On 8 March, the police found the applicant, who had stayed with various families in Jutland, and brought him back to the State Hospital in Copenhagen where he was readmitted to the Child Psychiatric Ward at his mother’s request. On 27 March 1984, the father, who had been detained on remand since his arrest on 22 September 1983 (see paragraph 18 above), was sentenced to 9 months’ imprisonment by the Court of Appeal. Having regard to the time spent in detention on remand, he was released on the same day. The applicant was discharged from the hospital on 30 March 1984 and placed in the care of a family not officially known to the father. The outcome of the second custody proceedings The question whether to transfer the custody rights from the mother to the father was, as mentioned above (see paragraph 17), brought before the Supreme Court following the decision of the Court of Appeal on 22 September 1983. Before the Supreme Court Professor Tolstrup maintained, in a report of 19 June 1984, that it would be in the best interest of the applicant that the parental rights remained with his mother. This opinion was supported by the Medico-Legal Council (Retslægerådet) in a statement of 9 August 1984. However, on 21 August 1984 the Supreme Court, by a majority of five votes to two, overruled the Court of Appeal’s decisions and awarded custody of the applicant to his father. The majority in their judgment said (translation from Danish): "The respondent [the mother] must be considered well suited to exercise custody and there seems to be no reason to believe that the appellant [the father] should not be suited to handle this task. As the desirability of continued child-psychiatric support is not found to counterbalance the need for a decision now on the question as to which parent Jon is to reside with, these judges find that out of consideration for his welfare it is desirable that custody of him be granted to the appellant in accordance with Jon’s own wish, regardless of whether his attitude to his parents may be due to a one-sided influence during his stay with the appellant. Their decision is therefore to find for the appellant." The applicant now lives with his father.

Denmark

PARTICULAR CIRCUMSTANCES OF THE CASE Mrs. Martha Nölkenbockhoff, a German national, is the widow and heir of Mr. Theodor Nölkenbockhoff, who died on 13 November 1981. She lives in Selm-Bork. Her husband was a senior manager in a holding company, Stumm AG, whose trading activities centred on iron, steel and fuel, including motor fuel. He joined the firm on 1 July 1967 and subsequently held a number of key positions in it. On 25 October 1974, Stumm AG ceased payments by reason of insolvency and asked the Essen District Court (Amtsgericht) to set in motion composition proceedings (Vergleichsverfahren). On 13 November 1974, Mr. Nölkenbockhoff was arrested under a warrant issued by the Essen District Court on 11 November; he was suspected among other things of bankruptcy offences. Other senior managers in the company were also arrested. On 17 May 1976, the indictment, which was 489 pages long, was served on Mr. Nölkenbockhoff and four co-defendants. The trial hearings began on 29 October 1976 before the 6th Criminal Chamber (Grosse Strafkammer) of the Essen Regional Court (Landgericht). They lasted until 11 July 1980, two or three hearings being held each week. The court heard evidence from hundreds of witnesses, and several thousand documents were read out. The applicant’s husband was defended by two counsel, one of whom was assigned by the court. On 11 July 1980, the Regional Court delivered its judgment, which ran to 579 pages. Mr. Nölkenbockhoff was found guilty inter alia on several charges of breach of trust (Untreue), criminal bankruptcy (Bankrott) and fraud (Betrug), and given an aggregate sentence of eight years’ imprisonment. His four co-defendants were also sentenced to prison terms - two of them, for more or less identical offences and a few additional ones, to nine years, nine months and to eight years, six months respectively; the other two, for aiding and abetting, to four years, three months each. In respect of a series of fraud charges, the Regional Court stayed the proceedings under Article 154 of the Code of Criminal Procedure (see paragraph 23 below); and it acquitted Mr. Nölkenbockhoff and two of his co-defendants on a number of other charges. In determining the sentences, the Regional Court took into account as extenuating circumstances the length of the proceedings and, in respect of the applicant’s husband, his detention on remand for some three years; this period was deducted from the total sentence. Mr. Nölkenbockhoff entered an appeal on points of law on the same day that judgment was given. After receiving the text of the judgment on 5 October 1981, he filed - on 19 October - full pleadings which ran to 735 pages with 94 appendices. The Federal Court of Justice (Bundesgerichtshof) had not given a decision by the time he died on 13 November, so that the proceedings in respect of Mr. Nölkenbockhoff came to an end without any decision being taken on his appeal. Three of the co-defendants, who had likewise challenged the Regional Court’s judgment, later withdrew their appeals on points of law; the appeal lodged by the fourth person convicted, Mr. M, was dismissed by the Federal Court on 7 July 1982 as being manifestly ill-founded. Having been arrested and detained on remand on 13 November 1974 (see paragraph 12 above), Mr. Nölkenbockhoff was released on bail at the end of March 1977 in order to undergo a bile-duct operation. He was re-arrested on 21 February 1979 but freed by the Hamm Court of Appeal (Oberlandesgericht) on 23 March 1979, the court holding that there was no valid ground for quashing the March 1977 order suspending execution of the arrest warrant. On 30 April 1980, the Essen Regional Court ordered his re-arrest and, at the same time, the arrest of all the co-defendants; as the public prosecutor had made his final submissions, calling for heavy sentences, the court held that the measures taken to prevent the defendants absconding were no longer sufficient. On 26 June 1981, Mr. Nölkenbockhoff was released on health grounds. In written pleadings dated 1 December 1981, the applicant, as her deceased husband’s sole heir, sought orders that the Treasury should bear the necessary costs and expenses (notwendige Auslagen) incurred by her late husband in connection with his conviction by the Regional Court and that the estate should be paid compensation for his detention pending trial. In the alternative, she requested the Regional Court to adjourn a decision on her applications until such time as the Federal Court of Justice had given judgment on the appeal brought by the co-defendant Mr. On 5 March 1982, the Essen Regional Court found against Mrs. Nölkenbockhoff. Its decision read as follows: "... The applications are admissible ... but ill-founded. Where proceedings are terminated by reason of a defendant’s death, his necessary costs and expenses are normally borne by the Treasury, but this does not apply where, were it not for this technical bar, the defendant would almost certainly have been convicted or his conviction almost certainly have been upheld (wenn es bei Wegdenken des Verfahrenshindernisses annähernd sicher zu erwarten war, dass es zur Verurteilung des Angeklagten gekommen bzw. bei einer Verurteilung geblieben wäre). This was so in the instant case. The defendant had already been found guilty, in a judgment that had not become final, after lengthy court proceedings in a trial (Hauptverhandlung) lasting more than three and a half years. The judgment convicting the three co-defendants ..., who were likewise sentenced to several years’ imprisonment, has become final. The co-defendant M is maintaining his appeal on points of law. The submissions made by the defence in its full pleadings afford no reason to suppose that the defendant would have been acquitted had the proceedings continued. The pleas alleging procedural defects (formelle Rügen) - even assuming them to be well-founded - would have been material to the decision to be taken in the instant case only if, in the event of a new trial, a different verdict on the merits would have been expected, that is to say an acquittal. The fact that [three of] the defendants ... have withdrawn their appeals on points of law, thereby confirming the judgment against them, argues decisively in favour of the correctness (materielle Richtigkeit) of the judgment. As to the plea alleging a breach of substantive law (materielle Rüge), the defence’s submissions again provide nothing to support the hypothesis that the proceedings were moving towards an acquittal. The quotations from the trial court’s judgment are taken out of context, do not cover the considerations (Erörterungen) subsequently set out by that court in the reasons for its judgment and are accordingly not consistent with its assessment of the case as a whole. For the same reasons the court declines to award compensation for the time spent in detention on remand, pursuant to section 6(1)(2) of the Criminal Proceedings (Compensation) Act (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen) [see paragraph 26 below]. Nor, to the extent that the proceedings were provisionally stayed under Article 154 of the Code of Criminal Procedure [see paragraph 23 below], are there any grounds for ordering the Treasury to pay the defendant’s necessary costs and expenses, because in view of the reasons given for the judgment, it was much more likely, having regard to the adverse financial position of the Stumm holding company, that if the proceedings had continued, the defendant would have been convicted on the counts in question (weil nach den Ausführungen im Urteil es bei der ungünstigen wirtschaftlichen Situation des Stummkonzerns bei einer Fortsetzung des Verfahrens wesentlich wahrscheinlicher war, dass es insoweit zu einer Verurteilung des Angeklagten gekommen wäre). That being so, the court does not consider it necessary to defer judgment until a decision has been given on the co-defendant M’s appeal on points of law. ...." The applicant appealed to the Hamm Court of Appeal against that decision on 11 March 1982. In written pleadings dated 18 March, she challenged, inter alia, the Regional Court’s finding that, had her husband not died, he "would almost certainly have been convicted or his conviction almost certainly have been upheld". She claimed that that statement was erroneous and infringed the Basic Law (Grundgesetz) and Article 5 (paragraphs 1 and 3) (art. 5-1, art. 5-3) and Article 6 (paragraphs 1 and 2) (art. 6-1, art. 6-2) of the Convention. The court caused the conviction to "become final" posthumously, thereby prejudicing her as the defendant’s widow with regard to the rights relied on and, in particular, entailing a violation of Article 6 § 2 (art. 6-2) of the Convention. It was as if it were sought to obtain a final (abschliessend) conviction of the deceased by a side wind in the form of a decision as to costs although no final (rechtskräftig) judgment had been handed down confirming that he had committed the offences with which he was charged. The Regional Court likewise disregarded the presumption of innocence in stating that the grounds of appeal afforded no reason to suppose that the defendant would have been acquitted. It ought at most to have decided, after a summary examination of the case, that the appeal on points of law had some prospects of success, or it should have refrained from expressing a view. It was precisely for that reason that the applicant had requested an adjournment to await the judgment of the Federal Court of Justice in the appeal proceedings brought by one of the co-defendants. The court, however, had prejudged the Federal Court’s decision by holding that the plea alleging a breach of substantive law again provided nothing to support the hypothesis of an acquittal: the court should have known that vital points in Mr. Nölkenbockhoff’s appeal were also relied on by the co-defendant The applicant pointed out in addition that from the outset her husband had denied having committed any offences and had indeed been acquitted on several counts. In the light, inter alia, of Article 6 § 2 (art. 6-2) of the Convention, it therefore had to be assumed that in the event of a new trial he would have been acquitted completely. Since criminal law was based on the principle of individual guilt, it was quite simply unacceptable - and, once again, contrary to Article 6 § 2 (art. 6-2) - to judge the deceased by the conduct of three of the co-defendants. In any case, the fact that those co-defendants had withdrawn their appeals on points of law could not be regarded as an admission of guilt; besides, they had held responsibilities within Stumm AG different from those of her husband. The public prosecutor’s office in Bochum and the principal public prosecutor’s office (Generalstaatsanwaltsschaft) at the Hamm Court of Appeal, to which Mrs. Nölkenbockhoff’s appeal (sofortige Beschwerde) had been forwarded for any comments, contended that the appeal should be dismissed. On 28 December 1981, the Bochum public prosecutor submitted that, having regard to the state of the proceedings, there was every likelihood (hohe Wahrscheinlichkeit) that the conviction would have been upheld. The principal public prosecutor gave his opinion on 11 June 1982. He considered that an assessment of the likely outcome of the proceedings (Prüfung des mutmasslichen Verfahrensausgangs), having regard to the reasons given in the judgment of the Essen Regional Court and the grounds of the appeal on points of law, could lead to only one conclusion. It could be assumed - and, indeed, had to be - that if the proceedings had been continued, the defendant’s conviction would have been upheld. The principal public prosecutor took the view that the outcome of the appeal brought by the co-defendant M and still pending before the Federal Court of Justice was of some relevance in assessing the likely outcome of the proceedings concerning Mr. Nölkenbockhoff, who, according to the aforementioned judgment, had committed his various offences in concert (Mittäterschaft) with the said co-defendant. The applicant, to whom the public prosecutors’ observations had been communicated, replied on 6 July 1982. She stated, inter alia, that there were considerable dissimilarities between M and her husband as regards the charges against them, their behaviour and the grounds of their appeals; and as evidence of this she pointed to the indictment, the judgment convicting the defendants, and the appeals. The Hamm Court of Appeal dismissed the action on 14 July 1982. It left open the question whether, in the event of a defendant’s death before the final conclusion (rechtskräftiger Abschluss) of criminal proceedings, a decision such as that sought by Mrs. Nölkenbockhoff could be taken, by analogy, under Article 467 § 1 of the Code of Criminal Procedure and section 6(1)(2) of the Criminal Proceedings (Compensation) Act (see paragraphs 24-26 below). And it added: "Even assuming such decisions are possible (Zulässigkeit), the assessment of the probable outcome of the trial, which must be made in both instances, leads to the conclusion that if the proceedings had been pursued until a final decision was handed down, the former defendant’s conviction would almost certainly (mit annähernder Sicherheit) have been upheld. In order to avoid repetition, reference is made to the reasons given for the contested decision, which are valid (zutreffend). It should be noted in addition that the appeal on points of law of the co-defendant M was subsequently dismissed, on 7 July 1982, by the Federal Court of Justice ... as being manifestly ill-founded. That fact is of particular importance in assessing the prospects of success which ... Mr. Nölkenbockhoff’s appeal would have had, because according to the reasons given for the judgment of 11 July 1980, the offences of which [he] was convicted at first instance were committed together with ... ...." On 2 September 1982, the Court of Appeal rejected the objections (Gegenvorstellungen) which the applicant had lodged against the judgment of 14 July 1982. Mrs. Nölkenbockhoff then applied to the Federal Constitutional Court (Bundesverfassungsgericht), claiming a breach of Article 1 § 1 (protection of the dignity of man), Article 14 § 1 (the right of property) and Article 20 § 3 (principle of the rule of law) of the Basic Law. On 30 September 1982, a bench of three judges of the Constitutional Court refused to entertain the constitutional complaint because it considered that the complaint did not have sufficient prospects of success. The reasons for its decision were as follows: "The presumption of innocence, which is founded on the principle of the rule of law, precludes treating as guilty a person who has not been finally (rechtskräftig) convicted. That does not mean, however, that in every case costs must be reimbursed where the proceedings are terminated without guilt having been established (Schuldnachweis) ... The refusal of the applications for an order that the Treasury should bear the deceased defendant’s necessary costs and expenses is based on Article 467 § 3, second sentence, sub-paragraph 2, of the Code of Criminal Procedure. The decision on the claim for compensation is based on section 6(1)(2) of the Criminal Proceedings (Compensation) Act. Both provisions, whose conformity with the Constitution cannot be doubted, confer on the courts a degree of discretion. There is nothing to suggest that the courts exercised their discretion in a manner contrary to the Constitution. (a) Admittedly, the decisions being challenged make a prediction of the probable outcome of the proceedings had they been continued. However, such an assessment does not amount to a finding of guilt but merely to a finding of a continuing state of suspicion (Eine derartige Einschätzung enthält indessen nicht die Feststellung einer Schuld, sondern lediglich die Feststellung einer fortbestehenden Verdachtslage). Consequently, it does not offend the presumption of innocence. (b) Nor was the prediction of the outcome of the proceedings arbitrary in nature. (aa) Neither the alleged defects ... in the judgment convicting the defendant nor the grounds of the appeal on points of law make it possible to dismiss as untenable the conclusion reached in the contested decisions that a (subsequent) acquittal was unlikely in respect of each of the offences of which the deceased defendant had been convicted. That was the only relevant issue for the order as to costs. The courts’ reference to the lack of success of the appeal proceedings instituted by the co-defendant M and to the withdrawal of the appeals on points of law entered by the other defendants is clearly to be regarded merely as an additional argument, and the impugned decisions are not based on it. (bb) Nor do the grounds advanced in support of the constitutional complaint show the unreasonableness of the Regional Court’s opinion that, had the proceedings been continued, a conviction would have been more likely than an acquittal ... [in connection with the charge in respect of which the proceedings had been provisionally stayed] ... ...."

P1-1

In a registered letter of 13 June 1989, the applicant informed the tenant that she intended to terminate the lease expiring on 31 December 1989 and asked her to vacate the premises by that date. In a writ served on the tenant on 23 November 1989, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate. By a decision of 28 November 1989, which was made enforceable on 1 December 1989, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1990. On 18 February 1991, the applicant served notice on the tenant requiring her to vacate the premises. On 19 March 1991, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 12 April 1991. On 2 May 1991, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself. Between 12 April 1991 and 27 April 1995 the bailiff made twenty attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. On 17 January 1996 the applicant was granted police assistance in evicting her tenant; on that day, however, the latter claimed to be ill and no officially appointed doctor was available to check her allegations. The bailiff arranged to make his next visit to the premises on 6 February 1996. However, on that occasion the applicant was not granted police assistance and the tenant refused to vacate the premises, as she was about to have a council flat allocated to her. On 23 April 1996, the tenant produced a document from the council stating that she would have the flat from 30 April 1996. On 17 May 1996, the tenant vacated the premises.

P1-1, 6

On 13 March 2001 the Srebrenica First Instance Court ordered the Republika Srpska (an Entity of <COUNTRY>) to pay the applicants 31,500 convertible marks (BAM) [1] , within 15 days, in respect of war damage together with default interest at the statutory rate. That judgment became final on 20 April 2001. On 1 April 2002 the Banja Luka District Court issued a writ of execution ( rješenje o izvršenju). 7 . The applicants complained of non-enforcement to the Constitutional Court of <COUNTRY> (“the Constitutional Court”). On 26 June 2007 the Constitutional Court found a breach of Article 6 of the Convention and Article 1 of Protocol No. The applicants did not claim compensation, but even if they had done so, their claim would have most likely been refused (see, for example, the Constitutional Court’s decisions AP 774/04 of 20 December 2005, § 438; AP 557/05 of 12 April 2006, § 195; AP 1211/06 of 13 December 2007, § 79; and AP 244/08 of 8 December 2010, § 37). After the extensive information campaign explaining the available options for the settlement of the Republika Srpska’s public debt (including its debt arising from domestic judgments), on 18 January 2010 Ms Ljeposava Kovačević, Mr Marko Tomić and Mr Janko Tomić informed the authorities that they agreed to be paid only the legal costs in cash and the principal debt and default interest in bonds. On 15 June 2010 government bonds were issued to them. They have already sold some or all of their bonds on the Stock Exchange Ms Dobrinka Jovanović was not issued government bonds.

Bosnia and Herzegovina

10

In December 1993 a series of letter bombs was sent to politicians and other persons in the public eye in <COUNTRY>. Some of the addressees were severely injured. On 10 December 1993 B., a right-wing extremist, was arrested on suspicion of having been involved in the so-called letter-bomb campaign. He was taken into detention on remand. Preliminary investigations were instituted against him on suspicion of attempted murder and of having committed offences under the National Socialism Prohibition Act ( Verbotsgesetz – “the Prohibition Act”). He was later charged with offences under the Prohibition Act and with having aided and abetted assault. In December 1993 the applicant company published a special issue and later an article in one of the regular issues of its magazine News , dealing with the letter-bomb campaign, the activities of the extreme right and, in particular, the suspect B. The respective reports were illustrated with several pictures of B. The cover page of the special issue for instance showed a small picture of B., subtitled in big letters “The Mad World of Perpetrators”. Under the headline “Terror for the Führer” a full-page picture showed B. together with two other persons. According to the comments, this picture was taken in a courtroom, where B. stood up in protest when the verdict was pronounced against his “Führer”, the neo-Nazi leader G.K. Furthermore, it was stated that, when G.K. was sentenced to ten years' imprisonment, his companions, including B., swore vengeance. According to another comment on the same page, these companions who had been supposed to be harmless lunatics were now arrested as bomb terrorists. The cover page of the second issue carried the headline “Victims and Nazis” and showed a large picture of one of the victims and a smaller picture of B. and two others. The victim was quoted as saying: “I want to meet the perpetrators.” At the bottom of the page the words “Nazi scene uncovered” appeared. In the article, a further picture of B. and another suspect, R., was shown. According to the comment, it had been taken on the occasion of the trial of the neo-Nazi leader G.K. The comment went on to state that R. and B., who had both wished to succeed G.K., were now suspected of having dispatched the bombs. Moreover, a wedding picture of B. was published. The comment accompanying it stated that, according to the investigations of the police, B. and R. had probably collaborated in order to organise the letter-bomb campaign. In the article itself, B. was described as pathologically ambitious, one of the most brutal members of the neo-Nazi scene and the possible successor to the neo-Nazi leader G.K. On 21 January 1994 B. brought proceedings under section 78 of the Copyright Act ( Urheberrechtsgesetz ) against the applicant company, requesting that the latter be prohibited from publishing his picture in connection with reports on any criminal proceedings against him. He also requested a preliminary injunction ( einstweilige Verfügung ) to that effect. On 9 March 1994 the Vienna Commercial Court ( Handelsgericht ) dismissed B.'s application for a preliminary injunction. The court observed that section 78 of the Copyright Act prohibited publishing a person's picture if the publication violated that person's legitimate interests. However, where criminal proceedings were conducted against the person concerned, that interest had to be weighed against the public interest in receiving information. As the present case related to very serious offences based on anti-democratic, subversive ideology, the publication of a suspect's picture was justified in principle. Further, the court found that it did not have to examine whether the accompanying comment violated B.'s right to respect for his private life as he had failed to indicate which passages of the articles at issue might go beyond the limits of acceptable reporting. On 22 September 1994 the Vienna Court of Appeal ( Oberlandesgericht ), upon B.'s appeal, issued a preliminary injunction prohibiting the applicant company from publishing B.'s picture in connection with reports on the criminal proceedings against him on suspicion of having committed offences under the Prohibition Act and of having aided and abetted assault through letter-bomb attacks. The Court of Appeal pointed out that section 78 of the Copyright Act was directed against the abuse of pictures in public. Section 78 sought above all to prevent a person from being disparaged by the publication of a picture, or his private life being made public or his picture being used in a way giving rise to misinterpretation, or in a disparaging and degrading manner. Further, the court observed that section 78 of the said Act did not define the term “legitimate interests”, thus conferring discretion on the courts in order to enable them to take the particular circumstances of each case into account. It also required the courts to weigh the interest of the person concerned in the protection of his or her picture against the publisher's interest in conveying information. The Court of Appeal went on to say that, in assessing whether a person's legitimate interests within the meaning of section 78 of the Copyright Act had been violated, not only the picture itself, but also the accompanying text had to be taken into account. Also, a person suspected of having committed an offence had a legitimate interest in not being denounced in public by the publication of a picture in connection with a disparaging text. In the present case, the contested publication constituted not only a gross insult, but also a serious violation of the presumption of innocence. Quoting some headlines and comments from the articles at issue, the Court of Appeal noted that the applicant company had called B. a “perpetrator” of the letter-bomb attacks, a “Nazi”, a “terrorist for the 'Führer'” and a companion of the neo-Nazi G.K. who had been sentenced to ten years' imprisonment. These gross violations of B.'s legitimate interests justified a prohibition on the publication of his picture in the context of the criminal proceedings which were at the time conducted against him. Despite this line of reasoning, the judgment had the effect of prohibiting the publication of B.'s picture not only in connection with a text that was prejudicial but – even more restrictively – in connection with reports on the criminal proceedings against him irrespective of the accompanying text. On 22 November 1994 the Supreme Court ( Oberster Gerichtshof ) rejected both parties' extraordinary appeals on points of law ( außerordentlicher Revisionsrekurs ), finding that they did not raise any important legal issues. As to the applicant company's appeal, it found that section 7a of the Media Act ( Mediengesetz ), to which the applicant company had referred in its submissions, did not lead to the result that a suspect's legitimate interests could not be violated by the publication of his picture. There was thus no contradiction with section 78 of the Copyright Act. Further, there were no clear indications in the present case that the public interest justified the publishing of B.'s picture. Thus, the appellate court's decision was not based on a gross misinterpretation of the law. Supplementing his application of 21 January 1994, B. had in the meantime filed an alternative claim ( Eventualbegehren ), requesting that the applicant company be ordered to refrain from publishing his picture in connection with such statements as had been made in the articles at issue and which he listed in detail. On 19 April 1995 the Vienna Commercial Court, in the main proceedings, granted B.'s alternative claim, ordering the applicant company to refrain from publishing B.'s picture where the publication was likely to violate B.'s legitimate interests, namely in connection with statements in which B. was referred to as the perpetrator of the letter-bomb attacks or as being involved in terror or letter-bomb attacks, or in connection with such statements – listed in detail – as had been made in the articles at issue. The court found that the publication of B.'s picture together with the accompanying text constituted not only a gross insult, but also a serious violation of the presumption of innocence. These gross violations of B.'s legitimate interests justified a prohibition on publishing his picture in the context of the criminal proceedings against him, but only if he was referred to as the perpetrator of the offences or if otherwise the rules of objective reporting were violated. Having regard to the seriousness of the charges brought against B. and the notoriety of the victims, the public interest in B.'s appearance outweighed his interest in not having his picture published as long as such reports did not overstep the boundaries of objective journalism. Further, the court emphasised that it did not intend to sanction reporting ( Wortberichterstattung ) as such. It repeated that, when assessing a person's claim under section 78 of the Copyright Act, the text accompanying the pictures was of importance. It made a difference whether a person, along with the publication of his picture, was stigmatised as the perpetrator of a crime or whether an objective report on the criminal proceedings against him was given. On 30 August 1995 the Vienna Court of Appeal dismissed the applicant company's appeal but granted B.'s appeal. It ordered the applicant company to refrain from publishing B.'s picture in connection with reports on the criminal proceedings against him on suspicion of having committed offences under the Prohibition Act and of having aided and abetted assault through letter-bomb attacks. The court recalled the reasons given in its decision of 22 September 1994 (see paragraphs 20-21 above) concluding once again that the publication of B.'s picture in the context of the accompanying comments had constituted a gross violation of his legitimate interests, which justified a prohibition on publishing his picture in the context of the criminal proceedings against him. It added that the onus was not upon B. to specify the statements which the applicant company had to refrain from publishing in connection with the pictures since, in general, new accusations were published in the course of the proceedings, and there was no interest in repeating the previous ones. Thus, the Commercial Court's judgment was worded too narrowly. On 24 October 1995 the Supreme Court rejected the applicant company's extraordinary appeal on points of law. It found that the applicant company undoubtedly had a right to impart information about the proceedings conducted against B. However, the right to impart information had to be distinguished from the right to publish pictures of B., which had to be balanced against B.'s interest in the protection of his picture. Even the publication of a picture accompanied by a correct statement of facts, which violated neither section 7a nor section 7b of the Media Act, could infringe the legitimate interests of the person concerned. Finally, the Supreme Court, referring to Article 10 of the Convention, found that the applicant company's right to freedom of expression had not been violated, since it had not been prohibited from reporting on the proceedings, but only from publishing B.'s picture in that context. In December 1995 a first-instance court acquitted B. of the charges of assault but convicted him of offences under the Prohibition Act. The criminal proceedings against B. received extensive news coverage. Contrary to the applicant company, other newspapers remained free to publish B.'s picture. On 18 December 1995 the Vienna Court of Appeal, in proceedings brought by B. under section 7b of the Media Act, found that the applicant company had violated the presumption of innocence and ordered it to pay 50,000 Austrian schillings by way of compensation to B. The court found that in its articles of December 1993 the applicant company had referred to B. as the perpetrator of the “letter-bomb terror”.

Austria

10

At the material time he was an editor of the web-based media site Pressan . On 2 November 2010 two adult sisters published an article and a letter on their website encouraging people to study the background of candidates in the forthcoming Constitutional Assembly elections. In particular, the sisters warned against A, a relative of theirs, who was standing for election. In the letter they alleged that A had sexually abused them when they were children. The sisters had previously sent the letter to their relatives, the police and the child protection services. For some unknown reason, the police had not instigated an investigation. On 7 November 2010, Pressan published an article about the sisters’ allegations. The article was based on an interview with one of the sisters and on the letter posted on their website. A was also contacted and his response, in which he denied the allegations, as well as his statement that he would not make any further remarks on the matter, were reported in the article. Pictures of the sisters were published with the article. On 8 November 2010 Pressan published an article about comments made by A to a newspaper where he rejected all the allegations and threatened Pressan with a lawsuit for being the first to publish the allegations. Furthermore, the article contained comments from one of the sisters. Pictures of one of the sisters and of A were published with the article. On 27 January 2011 Pressan published an article about the sisters’ having received a letter from A’s lawyer offering to settle the matter, failing which A would bring defamation proceedings against them, and about the sisters welcoming the opportunity to prove their allegations in court. The article was based on an interview with the sisters and statements on their website. A’s rejection of the allegations was also included in the article. Pictures of the sisters were published with the article. On 22 and 23 February and 30 May 2011, Pressan published further articles about the matter, based on the sisters’ statements on their website and in other media interviews, on A’ s comments in other media and on A’s daughter’s comments in a television interview. Pictures of the sisters were published with all the articles. Other media also published articles and interviews with the sisters. In the meantime, on 10 April 2011, A lodged defamation proceedings before the Reykjavík District Court against the applicant and requested that the following statements be declared null and void: A. “Sisters: We will not keep quiet while a child abuser stands for election to the Constitutional Assembly” B: “We cannot sit quietly by while a child abuser stands for election to the Constitutional Assembly” C: “I do not know whether our actions are legal, however that is a secondary point. The man is dangerous and on the loose” D: “The sisters will not be silenced by [A’s] daughter – Child abuse is not the private affair of his family” E: “Child abuse is never a private affair that the family of child abusers can undertake to solve. Child abuse is a crime” F: “Child abusers should not be allowed to hide – Forgiveness cannot entail co ‑ dependency”. According to Section 15, subsection 3, of the Printing Act (no. 57/1956, Lög um prentrétt ) the publisher or editor is liable for the publication if no author is identified. A argued that responsibility for the statements lay with the applicant as the editor of Pressan by virtue of Section 15 of the Printing Act, applied by analogy, since the author of the articles was not identified. During the proceedings before the District Court, B, a journalist, was identified as the author of the articles. He gave a statement before the District Court, but was not involved further in the proceedings. B stated that he had contacted A for comments before publishing all the articles, but he had been unsuccessful after publishing the first article. He also stated that he had tried to establish the sisters’ credibility and the truthfulness of the allegations by interviewing the sisters, A’s son, the police, one of the sisters’ employers, another alleged victim and other people mentioned by the sisters in their writings, who could confirm that the allegations were not appearing for the first time because of A’s candidacy, but had been known to the family and the police for years. B had also tried to contact the Child Protection Services, without success. Before the District Court, the sisters stated that they had been quoted correctly in Pressan and they had approved the publishing of their statements. Furthermore, they said that A had not initiated defamation proceedings against them. By judgment of 22 February 2012 the District Court found in favour of the applicant. As regards the issue of legality, the District Court came to the conclusion that Section 15 of the Printing Act did not apply to material published solely on the internet and that section 15, subsection 3, could not be applied by analogy in the case. However, the District Court stated that a supervisory obligation was placed on editors of web media, where articles were published without identifying the authors, and that the editor was obliged to ensure that material published on web-based media did not cause others harm or interfere with a person’s private life. Therefore, the District Court rejected the applicant’s claim that the case was wrongly directed against him. As regards the merits of the case, the judgment contained the following reasons: “The impugned statements were published on [ Pressan ] on 7 November 2010 after [A] had, along with about 500 people, declared his candidacy for the Constitutional Assembly. It was a gathering of 25 elected members, established by law by Parliament, which would prepare a proposal for a new constitution. There would be general elections, where the same rules about eligibility and the right to vote applied as in the Parliamentary election”... When the statements in sections A-C are compared to the sisters’ writings on their website on 2 November 2010, the court has to agree with [the applicant] that both the headline in section A and the statements in sections B and C are verbatim from their letter. [...] Furthermore, it cannot be overlooked that the sisters’ allegations were not emerging for the first time because of [A’s] candidacy; they had been proclaimed for at least a few years and were known to many, including the police. [The applicant] was therefore not publishing allegations that were being directed against [A] for the first time, but disseminating further allegations regarding offences that had emerged long before. [The applicant’s] arguments about the public having the right to be informed about the candidates in public elections cannot be ignored. By introducing themselves publicly to gain voters’ confidence and to persuade people to vote for them, [candidates] in a way become public persons and cannot expect all media coverage about them to be as positive as their own. Disputes, resolved and unresolved, regarding their earlier behaviour are matters to which one can expect attention to be drawn. By competing for voters’ attention, candidates usually undertake to be heavily criticised and have to tolerate this up to a point, although that point should be determined on a case-by-case basis. [The applicant] did not present the sisters’ allegations as his own, he just disseminated them further. Therefore, he will not be held accountable for the statements which are directly quoted from the sisters, which the latter have confirmed before the court to be theirs. The court does not agree with [A] that [the applicant] went beyond the limits of his freedom of expression under Article 73 of the Constitution. ... The statements in sections D and E were published on 23 February 2011 when the elections for the Constitutional Assembly were over. [A’s] daughter had discussed the sisters’ writings about her father in a television interview and declared, inter alia , that he was not a public person and that allegations about child abuse did not belong in the media. The sisters reacted to this criticism on their website and then [ Pressan ] published their reactions. [...] No new discussions about [A’s] case were initiated by the sisters this time, their writings were by way of reply. The statement in section D that appeared as a headline on [ Pressan ] quotes the sisters’ replies but is partly rephrased. The statement in section E published in an article on [ Pressan ] is mostly directly quoted. However, this statement can be understood as a statement by the media itself. Even though the statement is not directly quoted, it is of a general nature and refers to child abusers in general. The sisters have also testified before the court that they consider that they have been correctly quoted. So the court concludes that [the applicant] did not go beyond the limit of the freedom of expression guaranteed in Article 73 of the Constitution, with the statements in sections D and E.” On 1 August 2012 A appealed to the Supreme Court against the District Court’s judgment. By a judgment of 21 February 2013 the Supreme Court partly overturned the District Court’s judgment and found defamatory the statements in sections A, B, D and part of the statement in section C, consisting of insinuations that A was guilty of having abused children, and ordered the applicant to pay, under the Tort Act, 200,000 Icelandic Krónur (ISK) (approximately 1,600 euros (EUR)) for non-pecuniary damage, plus interest in compensation and ISK 800,000 (approximately 6,500 EUR) for A’s legal costs before the District Court and Supreme Court. Under Article 241 of the Penal Code the statements were declared null and void. As regards the issue of legality, the Supreme Court noted that the author of the articles had been identified and that the applicant had confirmed that he had agreed to the publication of the articles. The Supreme Court also confirmed that Section 15 of the Printing Act did not apply to material solely published on the internet. Furthermore, the Supreme Court stated that Section 15, subsection 3, of the Printing Act could not be applied by analogy to the case. However, the applicant had a supervisory obligation which entailed that he should conduct his editorial duties in such a way that the published material would not harm anyone by being defamatory. The Supreme Court referred in this respect to a Supreme Court judgment of 24 November 2011. Therefore, the Supreme Court rejected the applicant’s claim about the case being wrongly directed against him. As to the merits of the case, the judgment contained, inter alia, the following reasons: “The court can agree with [the applicant] that candidates for assignments in the public interest have to endure a certain amount of public discussion of their ability and skills and attributes and whether or not they can be trusted to bear this kind of responsibility. However, this cannot justify that [A], without any further or additional information, was accused of this criminal act in the media, [act] punishable by the Penal Code. Here it has been taken into account that [A] has not been found guilty of the conduct nor has he been under investigation because of it. It does not change anything that the journalist discussed the matter with [A] and others, who claimed they could testify about the incident, while working on the story and [A] rejected the allegations. In the light of the aforementioned, the limitation on the freedom of expression had to be justified in accordance with Article 73(2) of the Constitution.”... DOMESTIC LAW AND PRACTICE The relevant provision of the Icelandic Constitution ( Stjórnarskrá lýðveldisins Íslands ) reads as follows: Article 73 “Everyone 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.” The Penal Code No. 19/1940 ( Almenn Hegningarlög ), Chapter XXV, entitled “Defamation of character and violations of privacy”, sets out the following relevant provisions: Article 234 “Any person who harms the reputation of another person by an insult in words or in deed, and any person spreading such insults shall be subject to fines or to imprisonment for up to one year.” Article 235 “If a person alleges against another person anything that might be harmful to his or her honour or spreads such allegations, he shall be subject to fines or to imprisonment for up to one year.” Article 236 “Anyone who, against his or her better knowledge, makes or disseminates a defamatory insinuation shall be liable to up to two years’ imprisonment. Where such an insinuation is published or disseminated publicly, even though the person publishing or disseminating it has no reason to believe it to be correct, the sentence shall be a fine or up to two years’ imprisonment.” Article 241 “In a defamation action, defamatory remarks may be declared null and void at the demand of the injured party. A person who is found guilty of a defamatory allegation may be ordered to pay to the injured person, on the latter’s demand, a reasonable amount to cover the cost of the publication of a judgment, its main contents or reasoning, as circumstances may warrant in one or more public newspapers or publications.” Section 26(1) of the Tort Liability Act No. 50/1993 ( Skaðabótalög ) reads: “A person who a. deliberately or through gross negligence causes physical injury or b. is responsible for an unlawful injury against the freedom, peace, honour or person of another party may be ordered to pay non-pecuniary damages to the injured party.” The Printing Act No. 57/1956 ( Lög um prentrétt ), Chapter V, on the liability for the content of publications, contains the following relevant provisions. Section 13 “Any person who publishes, distributes, or is involved in the publishing or distribution of any publication other than a newspaper or periodical shall bear criminal liability and liability for damages pursuant to the general rules of law if the substance of the publication violates the law.” Section 15 “As regards liability for newspapers or magazines other than those listed in section 14, the following rules shall apply: The author is subject to criminal liability and liability for damages if he or she is identified and either resident in <COUNTRY> when the publication is published or within Icelandic jurisdiction at the time proceedings are initiated. If no such author is identified, the publisher or editor are liable, thereafter the party selling or distributing the publication, and finally the party responsible for its printing or typesetting.” Section 51 of the Media Act No. 38/2011 ( Lög um fjölmiðla ), which entered into force on 21 April 2011, reads: Article 51 “Liability for textual content . If textual content is in violation of the law, penalties and criminal and compensatory liability shall be as follows: a. An individual shall be liable for the content he writes in his own name or with which he clearly identifies himself if he is domiciled in <COUNTRY> or is subject to Icelandic jurisdiction on other grounds. If textual content is correctly quoted as being that of a named individual, the person quoted shall be liable for his own statements if he gave consent for their being published or made available and he is either domiciled in <COUNTRY> or is subject to Icelandic jurisdiction on other grounds. b. The purchaser of commercial communications, whether an individual or a legal person, shall be liable for their content if he is domiciled in <COUNTRY> or is subject to Icelandic jurisdiction on other grounds. In instances other than those covered by items a and b above, the content manager in question and/or the person liable for the media service provider shall be liable for the content published. Media service providers shall be liable for the payment of fines and compensation payments that their employees may be ordered to pay under this Article. Media service providers shall be obliged to provide any persons who consider they are the victims of a violation as a result of the publication of text content with information indicating who is liable for the content.” By judgment of 24 November 2011 (case No 100/2011), which concerned defamation proceedings against editors and a journalist of a newspaper and newspaper website, the Supreme Court of <COUNTRY> found that before the Media Act entered into force, there had been no applicable legal rule about the responsibility of an editor of web-based media which published material solely online. The court further stated that Section 15 of the Printing Act did not apply and could not be applied by analogy. Nevertheless, the court concluded that editors had a supervisory obligation which entailed that they should conduct their editorial duties in such way that the published material would not harm anyone by being defamatory.

Iceland

On 16 October 1991 the Gospić police learned that seven civilians had been killed that day in the village of Bukovac. Their bodies were transported to the Pathology Department of the Gospić Medical Centre by the members of the Croatian Army who had found them. Two of the bodies were identified as the applicants’ parents, Mile and Ana Pocrnić, and the third as their grandmother, Marija Pocrnić. An investigating judge of the Gospić County Court was informed of the killings. The investigating judge decided that it was not possible to carry out an on-site inspection because of the danger of further attacks by unidentified persons from Široka Kula. On the same day a pathologist performed an autopsy on the corpses and drew up a post-mortem report. He established that the applicants’ parents and their grandmother had been shot dead. On 28 December 1991 the Gospić police lodged a criminal complaint with the Gospić County State Attorney’s Office against persons unknown on charges of murder in connection with the killing of seven inhabitants of the Bukovac village on 16 October 1991, including the applicants’ parents, Mile and Ana Pocrnić, and their grandmother Marija Pocrnić. On 11 September 1992 the Gospić police interviewed P., who had been living in Podlapača, a village near Bukovac, during the critical period. On an unspecified date in December 1991 three members of the Serbian paramilitary forces, B., R.Š. and J.G., had fired at him, but he had escaped into the woods. While visiting one of his neighbours on 26 October 1991 he had met B. and Č., who had said that they had killed some people in Bukovac. When the police showed him photographs of some members of the Serbian paramilitary forces he recognised B.G. and Č.B. as B. and Č., the persons he had met at his neighbour’s house. On 14 September 1992 the police interviewed P.J. and J., who were brothers. P.J. said that he had met B.G., Č.B. and another man in a prison in Knin. When he had asked B.G. why they had been imprisoned he had told him that they had killed some civilians in Korenica. However, J. and P.J. thought that this had not happened in Korenica but in one of the Croatian villages near Lički Osik. On 15 September 1992 the Gospić police sent a report to the Karlovac Military Prosecutor stating that B.G. and Č.B may have been among the perpetrators of the killings in Bukovac. Immediately before the Croatian Army military action “Storm” which started on 4 August 1995, the vast majority of the Serbian paramilitary forces fled <COUNTRY>, firstly to Bosnia and then to <COUNTRY> in some cases. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”). On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began. On 19 March 1996 the second applicant handed the police a letter sent to her by her relative P. In 2001 the police interviewed the second applicant. On 23 August 2001 the Service for the Protection of the Constitutional Order ( Služba za zaštitu ustavnog poretka ) sent a report to the Ministry of Justice and the Gospić County State Attorney’s Office on the killing of the applicants’ parents and grandmother, allegedly by members of the Serbian paramilitary forces. The report stated that the only survivors who had any information about the killings were P. and J.P., who both lived in <COUNTRY>. A letter of 19 March 1996, drafted by P., was also enclosed, as well as a letter drafted by P. and his father J.P. on an unspecified date and sent to the Service for the Protection of the Constitutional Order. P. alleged that on 16 October 1991 a group of members of the Serbian paramilitary forces from Široka Kula had come to their village, Bukovac, and killed several people. He named , Su., O., , Se., Bo.K., Da., N., Du., Br.K., Ma.U., S.G., U. and T.G. as those personally known to him. He openly named commanders of various formations of these forces as: P.R., O., S.Č. or Ɖ., Se. and K. The only survivors had been himself and his parents. They had been taken from Bukovac to a prison in Korenica. His mother had died in the meantime while he and his father J.P. had emigrated to <COUNTRY> after the war. On 1 October 2001 the Gospić County State Attorney’s Office lodged a request for an investigation with the Gospić County Court and asked that P. and J.P. be heard as witnesses. On 15 January 2004 the police interviewed S.Ɖ. and S., former members of the Serbian paramilitary forces, in the Zagreb Prison Hospital. S.Ɖ. said that a formation of Serbian paramilitary forces under the command of S. and had carried out “actions”, inter alia , in the area of Bukovac. He named several members of that formation. S. described various actions in which members of Serbian paramilitary forces had killed civilians in Croatian villages in the broader area of Široka Kula and Lički Osik, including Bukovac, but had no information about the killing of the applicants’ relatives. On 23 January 2004 the police interviewed B.Č., also a former member of the Serbian paramilitary forces, who described various actions in which members of Serbian paramilitary forces had killed civilians in Croatian villages in the broader area of Široka Kula and Lički Osik, including Bukovac, but had no information about the killing of the applicants’ relatives. On 2 May 2006 an investigating judge of the Gospić County Court asked the Gospić County State Attorney’s Office whether they still insisted on interviews with P. and J.P. since their address was “uncertain”. On 29 June 2006 the investigating judge asked the Gospić Counter-Information Service for the address of P. and J.P. On 9 August 2006 the Centre provided the investigating judge with the address of P. and J.P. in <COUNTRY>. On 16 September 2008 the Department for War Crimes of the Ministry of the Interior sent a detailed report about the possible suspects to the Ličko-senjska Police Department. On 16 July 2010 the Gospić County State Attorney’s Office sent a report to the State Attorney’s Office on the killing of seven civilians in Bukovac in 1991. The Gospić County Court had informed them that the Canadian Ministry of Justice had invited P. and J.P. on three occasions to give their statements, which they had refused to do with the explanation that they had already given their statements in writing. They had almost certainly been referring to a letter to their relatives in <COUNTRY> and the one sent to the Service for the Protection of the Constitutional Order. On 14 September 2010 an investigating judge of the Gospić County Court heard evidence from Ć., who confirmed that members of the Serbian paramilitary forces had captured P. in 1991. As to the killing of the seven persons in Bukovac, he had heard about that from one K., who had died in the meantime. On 24 October 2011 the police interviewed P., J. and P.J. P. had no relevant information about the killing of the civilians in Bukovac. J. and P.J. repeated their earlier statements (see paragraph 10 above). On 25 October 2011 the police again interviewed P., who repeated his statement of 11 September 1992 (see paragraph 9 above). On the same day the police also interviewed N.P., a neighbour of P., who admitted that B.G. and Č.B. had visited him in 1991 but said that they had not mentioned the killing of civilians in Bukovac. On 26 October 2011 the police noted that in March 2011 B.G. and Č.B. had been convicted of war crimes in connection with the killing of R.’s family in Lički Osik, <COUNTRY>, and sentenced to twelve years’ imprisonment by a court in Belgrade. In 2011 the police interviewed the second applicant again. On 20 January 2011 the police interviewed , one of the Croatian soldiers who had found the bodies in Bukovac. He had no relevant information about the killing of the civilians in Bukovac. On 21 January 2011 the police interviewed B.Č., a former member of the Serbian paramilitary forces. He repeated his earlier statement (see paragraph 19 above). On 22 August 2011 the Belgrade Interpol Office informed the Zagreb Interpol Office that one of the suspects, , had been placed in pre-trial detention in connection with a different set of criminal proceedings. He had in the meantime become a Serbian citizen. On 2 February 2012 the Ličko-senjska Police Department sent a report to the Karlovac County State Attorney’s Office informing it that two of the persons mentioned in P.’s letter (see paragraph 14 above), namely and S., had died. A report drawn up by Š., a member of the Serbian paramilitary forces was enclosed. It stated that on 16 October 1991 “they had killed seven people”. A list of the members of the paramilitary forces from the Teslingrad area was also enclosed. On 21 September 2012 the Rijeka County State Attorney’s Office sent a criminal complaint against B.G. and Č.B. to the Serbian Prosecutor for War Crimes and asked him for the address of another suspect, Š., indicating that he should be questioned about the report he had allegedly drawn up on the events of 16 October 1991 in Bukovac. On 28 January 2013 the Rijeka County State Attorney’s Office forwarded a report on the interviews with B.G., Č.B. and Š., carried out by the Serbian authorities, to the Ličko-senjska Police Department. They denied any involvement in the killing of the applicants’ relatives. Between 21 February and 5 March 2013 the Ličko-senjska Police Department interviewed P.J., J., P., P., P. and N.P., P. and P. had no relevant information about the killing of the applicants’ relatives. The others repeated their earlier statements. On 27 February and 8 March 2013 the Ličko-senjska Police Department sent a report to the Rijeka County State Attorney’s Office listing the suspected perpetrators of the killings in Bukovac on 16 October 1991. Four of them had died, fourteen had moved to <COUNTRY>, three to the <COUNTRY> and in respect of two of them there was no relevant information. On 15 March 2013 the Rijeka County State Attorney’s Office sent the report of 8 March 2013 to the Serbian Prosecutor for War Crimes and asked him to interview the suspects living in <COUNTRY>. In April 2013 the police learned that one of the suspects, S., had died.

Croatia, Canada, Serbia, United States

8

A. The applicant's pre-trial detention From 19 to 21 October 2003 According to the applicant, he was detained and ill-treated in police custody from 19 to 21 October 2003. There are no further details or documents. From 31 October 2003 to 23 March 2006 In the evening of 31 October 2003 the applicant, together with another person, was arrested by the Fontanka police unit of the Kominternovo District Police Department in flagrante delicto on the scene of a robbery and car hijacking. As it would later be confirmed by at least two eye-witnesses (see paragraph 23 below), the applicant attempted escaping from and showed resistance to the police. According to the applicant, he pleaded guilty to several counts of robbery under torture. He alleged in particular that he had been heavily beaten with rubber truncheons, hanged with his arms twisted behind him and administered electric shocks. On 1 November 2003 the applicant signed the arrest report in confirmation that his procedural rights had been explained to him. On the same day the applicant was taken to the Kominternovo Temporary Detention Facility, where a doctor examined him and made a note that he had a bruise under his left eye. On 4 November 2003 the investigator submitted to the Kominternovo Town Court ( Комінтернівський районний суд – “the Kominternovo Court”) a motion on the applicant's detention as a preventive measure pending trial. The investigator noted that the applicant was suspected of having committed serious crimes (three counts of robbery with violence on 22, 26 and 31 October 2003), had no permanent place of residence and had a criminal record, and thus could hinder the investigation or abscond if at liberty. According to the investigator, the applicant had fully admitted his guilt. On the same date the Kominternovo Court remanded the applicant in custody, having upheld the investigator's reasoning. On 26 December 2003 the Kominternovo Court extended the term of the applicant's detention to four months, having referred to the necessity to complete the investigation. On 15 June 2004 the applicant was committed for trial. No further documents concerning the applicant's detention are available in the case file. B. Conditions of the applicant's detention While having raised a general complaint about the conditions of his detention, the applicant did not describe them until in response to the information submitted by the Government. According to the information provided by the Government, from 7 November 2003 to 3 November 2006 the applicant had been held in fifteen different cells, the smallest of which had measured 17 square meters (the applicant had spent three and a half months there, sharing with another inmate), while the largest one had measured about 1 square meters (where he had stayed for fifteen days, sharing with eleven other inmates). Each of the cells had a toilet separated from the living area, sufficient natural and artificial light, operational heating, ventilation, water supply and sewage system. As it transpires from a note by the Odesa SIZO administration issued on an unspecified date, disinfection, disinsection and rat extermination were regularly carried out on the SIZO premises. The Government provided seven colour photos of the cells the applicant had been detained in. The photos showed that the cells were clean and looked as if they had been repaired not long before the photos had been taken. They had sufficient natural light; the lavatories were separated from the living area and appeared to be clean. The applicant contested the accuracy of the information submitted by the Government in so far as the number of inmates per cell was concerned and alleged that there had been more detainees in the cells than indicated by the Government. He also alleged that he had not been detained in the cells shown in the photos. The applicant's conviction On 23 March 2006 the Malynovskyy District Court of Odesa ( Малинівський районний суд – “the Malynovskyy Court”), to which the case had been transferred from the Kominternovo Court on an unspecified date, found the applicant guilty of three counts of robbery with violence, committed on 22, 27 and 31 October 2003 by a group of persons acting in concert, and sentenced him to fourteen years' imprisonment with confiscation of all his personal property. The court based its findings, inter alia , on the testimonies of the victims of all three instances of robbery, medical reports concerning the injuries they sustained during those robberies, as well as material evidence (certain items seized from the applicant and recognised by the victims as the stolen ones; two knives, a hammer and a sack discovered in the car, which the co-defendants had left immediately before their arrest). The court also heard two eye-witnesses of the applicant's arrest on 31 October 2003, according to whom he had shown resistance to the police and had tried to escape from the scene. Furthermore, it was noted in the verdict that both co-defendants had fully confessed to the crimes they had been charged with on 4 November 2003 and had consistently pled guilty throughout the pre-trial investigation. The court examined their allegations of ill-treatment in police custody, voiced for the first time at the trial, and found them unsubstantiated. Namely, it noted that they had failed to raise any such complaints in the course of the pre-trial investigation and that the circumstances of the case indicated (as confirmed by the eye-witnesses of the arrest and by the police officers who had carried out the arrest and who were questioned by the court) that the bruise on the applicant's face noted on 1 November 2003 might have been sustained in the course of his fight with the police prior to his arrest. On 22 May 2007 the Odesa Regional Court of Appeal ( Апеляційний суд Одеської області ) upheld that verdict. The applicant appealed in cassation, alleging that his conviction was not based on solid evidence. The cassation appeal did not contain any allegation of ill-treatment in police custody. No information about the final outcome of the proceedings has been provided by the parties. However, it appears from the case file that the Supreme Court found against the applicant. The applicant's correspondence with the Court The applicant's letters to the Court dated 30 March, 10 May, 9 June, 12 July, 28 November, 8 and 15 December 2005, as well as 20 March, 16 May and 3 November 2006, were accompanied by cover letters, signed by the Governor of the Odesa SIZO, which contained a brief summary of their contents (for example: “Please find attached a complaint by the accused, Glinov, concerning his rights and the conduct of the investigation in his case”, “... concerning his case and actions of the police officers”, “...concerning the judge's actions”, “... concerning the defence of his rights”, “... concerning the withdrawal of his case”, etc.). The first page of each of the eighteen letters from the applicant to the Court bore the SIZO stamp with the dispatching date noted in handwriting (eight of those had been sent before 21 December 2005, the other ten on various dates after 21 December 2005 – see paragraph 38 below). From May 2005 to March 2006 the Registry of the Court requested the applicant eight times to submit documents in substantiation of his complaints under Articles 3 and 5 of the Convention. Each of the requests was followed by a letter from the applicant, in which he noted that: there were no copying facilities in the SIZO and that he would copy the documents by hand; the facts of his case were self-explanatory; the prospects of <COUNTRY>'s accession to the European Union were poor given the alleged violations in his case; and the witnesses allegedly required protection for unspecified reasons. The applicant made no explicit reference to the Court's requests. The applicant's letters reached the Court on average two weeks to two months following their dispatch. The case file contains copies of sixteen stamped certificates issued by Odesa-59 Post Office to the SIZO administration in confirmation that it had accepted correspondence from detainees (including the applicant) to be sent to the Strasbourg Court. It also contains copies of extracts from the SIZO logbooks of incoming and outgoing correspondence and “correspondence delivery acts” signed by the SIZO officials. Between the end of December 2005 and April 2006 (with the exact date not documented due to a technical mistake), the Court received a ten- page letter from the applicant dated 13 December 2005, in which he outlined his vision for the reform of penitentiaries in <COUNTRY> with a view of improving the conditions of detention. It was accompanied by a cover letter from the SIZO administration dated 15 December 2005, according to which its registered number was 5-3-G-1087. The case file contains a copy of a post office receipt of 16 December 2005 for the dispatch, inter alia , of letter 5-3-G-1087 from Mr Glinov. By a letter of 15 May 2006, which reached the Court on 26 May 2006, the applicant sought the withdrawal of his application referring to “... the failure [of the SIZO administration] to forward [his] letter to the Court of 13 December 2005 in fifty-three pages; a partial change of the charges against [him] on 23 December 2005; a ruling of the court and ... the intense pressurising by the authorities ...” On 23 May 2006 the Court sent a letter to the applicant informing him that his application had been struck out of the list by decision of Committee on 16 May 2006. On 2 October 2006 the Court informed the applicant about the restoration of the application to the list of cases and its communication to the respondent Government on 25 September 2006. Following the communication of the application to the Government, the applicant's correspondence with the Court continued, with some of his letters bearing the SIZO stamp (see paragraph 28 above).

Ukraine

Its name in Basque is Euzko Alderdi Jeltzalea – Iparraldeko Erakundea (Basque Nationalist Party – Iparralde Regional Organisation), and its registered office is in Bayonne (<COUNTRY>). “Iparralde” is the Basque designation for part of south-western <COUNTRY>. Its constitution of 19 August 1996 states that it is “formed as a regional branch of the EAJ-PNB in the provinces of Laburdi (Labourd), Benafarroa (Lower Navarre) and Zuberoa (Soule)” and adopts “the national ideology of the EAJ-PNB” and “the traditional principles and modus operandi of the EAJ-PNB to the extent that they are compatible with the present Constitution”. The EAJ-PNV (Euzko Alderdi Jeltzalea – Partido Nacionalista Vasco; the French abbreviation is EAJ-PNB) is a political party established under Spanish law whose aim is to defend and promote Basque nationalism. The applicant party states that its activities are the same as those of any political party: it devises political programmes, puts forward candidates for elections and takes part in election campaigns. In order to be able to receive funds, in particular financial contributions from the EAJ-PNV, the applicant party formed a funding association in accordance with section 11 of the Political Life (Financial Transparency) Act of 11 March 1988. On 16 September 1998 it applied to the National Commission on Election Campaign Accounts and Political Funding ( Commission nationale des comptes de campagnes et des financements politiques – “the CCFP”) under section 11-1 of the same Act for authorisation of the funding association. On 22 January 1999 the CCFP rejected the application, giving the following reasons in its decision: “... [The CCFP] has been asked to authorise the funding association for the Parti nationaliste basque as that political organisation’s funding association within the meaning of section 11 of the Act of 11 March 1988 as amended. It was noted in the Commission’s opinion published in the Official Gazette of 18 November 1998 ... and was acknowledged by the [applicant] party’s chairman in his letter of 20 January 1999 that the party receives funds from the Spanish Basque Nationalist Party. Section 11-4 of Law no. 88-227 of 11 March 1988, as amended by section 16-1 of Law no. 95-65 of 19 January 1995, prohibits the funding of a political party by any foreign legal entity [ personne morale ]. The Parti nationaliste basque receives financial support from the Spanish Basque Nationalist Party, whose official recognition under Spanish law does not in any way remove its status as a foreign legal entity. Accordingly, this unlawful source of funding, which accounts for most of the resources of the Parti nationaliste basque, precludes the party from having a funding association authorised in accordance with the law. ...” On 22 June 1999 the applicant party applied to the CCFP to reconsider its decision. The application was refused on 2 July 1999 in a decision worded as follows: “... As to the [alleged] absence of a ban on the financing of a French political party by a foreign political party: Having compared the provisions of Article 52-8 of the Elections Code, applicable to election campaigns, and section 16-1 of the Act of 19 January 1995, the applicant contends that section 16-1 ... simply states that only a political party can fund another political party and that, contrary to the position regarding election campaigns, no provision of any statute or regulations expressly prohibits the funding of a political party by another political party established under the law of a foreign country. This argument disregards the fifth subsection of section 11-4 of the Act of 11 March 1988, as amended by the Acts of 15 January 1990 and 19 January 1995, which provides: ‘No funding association or financial agent may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.’ Pursuant to section 11 of the Act of 11 March 1988, the intervention of a funding association or financial agent is compulsory for the receipt of funds. It thus follows from these two provisions, read together, that a party cannot receive funds from a political party that is a foreign legal entity. As to the [alleged] infringement of the Community principle of the free movement of capital and [alleged] incompatibility with developments in national electoral law: These two principles conflict with express provisions of French law. Firstly, the free movement of capital does not prevent local law from regulating certain aspects of this principle. Secondly, the transnational representativeness of parties does not necessarily presuppose financial support from abroad and, contrary to what the applicant argues, the prohibition of such support does not in any way impair the full exercise of the right to vote and to stand for election. ...” On 3 September 1999 the applicant party applied for judicial review of that decision to the Conseil d’Etat , which dismissed the application on 8 December 2000 in a judgment worded as follows: “... Section 11 of the Political Life (Financial Transparency) Act (Law no. 88-227 of 11 March 1988), in the wording resulting from Law no. 90-55 of 15 January 1990, provides that political parties and their territorial and specialist organisations ‘collect funds through the intermediary [of an agent] duly designated by them, which may be either a funding association or an individual’. Section 11-1, inserted into the Act of 11 March 1988 by the Act of 15 January 1990, provides that ‘authorisation to act as a political party’s funding association shall be given by the National Commission on Election Campaign Accounts and Political Funding’. It follows from the first subsection of section 11-6, inserted into the Act of 11 March 1988 by the Act of 15 January 1990, that the granting of authorisation is subject to the funding association’s compliance with the requirements of sections 11-1 and 11-4 of the Act. Among the requirements concerned are those set forth in the penultimate subsection of section 11-4, which provides: ‘No funding association or financial agent of a political party may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.’ ... Substantive legality The applicant group argues that the Commission erred in its application of section 11-4 of the Act of 11 March 1988 and that, should the Commission’s interpretation be held to prevail, the statutory provisions cited in support of its decision should be struck down as being contrary to the Constitution and incompatible with <COUNTRY>’s international obligations. As to the alleged erroneous application of section 11-4 of the Act of 11 March 1988: ... the penultimate subsection of section 11-4 of the Act of 11 March 1988 prohibits funding associations from receiving financial contributions ‘from a foreign State or a foreign legal entity’. Foreign political parties, which belong to the category of foreign legal entities, fall within the purview of that prohibition. The amendments resulting from the Act of 19 January 1995 to the second subsection of section 11-4 with the effect, firstly, of prohibiting a legal entity from funding a party or a political group and, secondly, of excluding ‘political parties and groups’ from this prohibition on account of the role conferred on them by Article 4 of the Constitution of 4 October 1958 had neither the purpose nor the effect of exempting foreign political parties from the prohibition on the funding of a French political party by any foreign legal entity. Consequently, the applicant group has no basis for arguing that the impugned decision was based on an erroneous application of the provisions of the penultimate subsection of section 11-4 of the Act of 11 March 1988 in conjunction with the second subsection of that section. As to the alleged breach of Article 11 of the Declaration of the Rights of Man and of the Citizen: It is not for the Conseil d’Etat , acting in its judicial capacity, to assess whether the law is compatible with the Constitution. Accordingly, the argument that section 11-4 of the Act of 11 March 1988 contravenes Article 11 of the Declaration of the Rights of Man and of the Citizen, to which the Preamble to the Constitution refers, fails. As to the alleged incompatibility of the law with <COUNTRY>’s international obligations: As regards the Convention for the Protection of Human Rights and Fundamental Freedoms: The applicant group relies on the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10, paragraph 1, of which secures freedom of expression to everyone ‘without interference by public authority and regardless of borders’ and Article 14 of which provides that the enjoyment of the rights and freedoms set forth in the Convention is to be secured ‘without [discrimination] on any ground such as ... national ... origin ...’. Even accepting, as the applicant group argues, that the rules on the conditions for funding political parties have a bearing on the right to freedom of expression within the meaning of paragraph 1 of Article 10 of the Convention, which includes, as well as the freedom to hold opinions, ‘the freedom to receive and impart information and ideas’, paragraph 2 of the same Article nonetheless provides that ‘[t]he exercise of these freedoms, since it carries with it duties and responsibilities’, may be subject to such ‘restrictions ... as are prescribed by law and are necessary in a democratic society’ to the extent that they satisfy one or other of the requirements set forth in that paragraph, among which is ‘the prevention of disorder’. Political groups and parties falling within the purview of Article 4 of the Constitution of the French Republic are intended to contribute to the exercise of suffrage in the implementation of national sovereignty. In prohibiting foreign States and foreign legal entities from funding national political parties, the legislature sought to preclude the possibility of creating a relationship of dependency which would be detrimental to the expression of national sovereignty. The aim thus pursued is linked to the ‘prevention of disorder’ within the meaning of paragraph 2 of Article 10 of the Convention. On account of both the justification of this measure and the fact that the right to freedom of expression is affected only indirectly by the rules governing the funding of political parties, and in view of the margin of appreciation which Article 10, paragraph 2, affords the national legislature, the provisions of section 11-4 of the Act of 11 March 1988 are not incompatible either with the requirements of Article 10 of the Convention, or indeed with those of Article As regards Community law: The applicant group argues that since the resources obtained by the funding association whose authorisation has been refused stem from a political party with its registered office in a member State of the European Community, the provisions of the penultimate subsection of section 11-4 of the Act of 11 March 1988, in so far as they apply to a situation governed by Community law, are incompatible with a number of provisions of the Treaty establishing the European Community. ... Thirdly, even supposing that the rules governing the funding of political parties may, in certain respects, have a bearing on the free movement of capital between member States as guaranteed by Article 56 of the EC Treaty, that Article, as Article 58 clearly indicates, does not affect the right of member States to ‘take measures which are justified on grounds of ... public security’. Regard being had both to the aim it pursues and to the limited impact it has on the free movement of capital, the prohibition set forth in the penultimate subsection of section 11-4 of the Act of 11 March 1988 is to be counted among the measures that may be taken by a member State under Article 58 of the Treaty. Accordingly, the submission that the Act is incompatible with Article 56 must be dismissed. Fourthly, the provisions of section 11-4 of the Act of 11 March 1988, which, as stated above, are intended to avoid creating any relationship of dependency between political parties in the performance of their function and a foreign State or a foreign legal entity, are likewise not incompatible with the provisions of Article 191 of the Treaty, which appear in a part of the Treaty dealing with the Community institutions and more specifically the European Parliament, and which read: ‘Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.’ Accordingly, and even supposing that Article 191 creates any rights in respect of private individuals, this submission must fail. ...”

France

The television programmes produced by the applicants The applicants (the second of whom died in 1999) were at the relevant time employed by one of the two national TV stations in <COUNTRY>, Danmarks Radio. They produced two television programmes which were broadcast on 17 September 1990 at 8 p.and 22 April 1991 at 8 p.respectively. The programmes were called “Convicted of Murder” ( dømt for mord ) and “The Blind Eye of the Police” ( Politiets blinde øje ) respectively and dealt with a murder trial in which the High Court of Western <COUNTRY> ( Vestre Landsret ) had convicted a person, henceforth called X, on 12 November 1982 of murdering his wife. X was sentenced to 12 years' imprisonment. The Supreme Court ( Højesteret ) upheld the sentence in 1983. Subsequent to X's release on probation, he requested the Special Court of Revision ( Den Særlige Klageret ), on 13 September 1990, to reopen the case. At the outset of both programmes it was stated that they had been produced on to the following premise: “In the programme we shall provide evidence by way of a series of specific examples that there was no legal basis for X's conviction and that by imposing its sentence, the High Court of Western <COUNTRY> set aside one of the fundamental tenets of the law in <COUNTRY>, namely that the accused should be given the benefit of the doubt. We shall show that a scandalously bad police investigation, in which the question of guilt had been prejudged right from the start, and which ignored significant witnesses and concentrated on dubious ones, led to X being sentenced to 12 years' imprisonment for the murder of his wife. The programme will show that X could not have committed the crime of which he was convicted on 12 November 1982”. At an early stage in the first programme, “Convicted of Murder”, there is the following comment: “In the case against X, police inquiries involved about 900 people. More than 4,000 pages of reports were written – and 30 witnesses appeared before the High Court of Western <COUNTRY>. We will try to establish what actually happened on the day of the murder, 12 December 1981. We shall critically review the police's investigations and evaluate the witnesses' statements regarding the time of X's wife's disappearance.” As part of the preparation of this first programme, the applicants had invited the police in the district of Frederikshavn, who were responsible for the investigation of the murder case, to take part in the programme. As certain conditions for giving interview were not complied with, inter alia that the questions be send in writing in advance, by letter of 19 April 1990 the Chief of Police informed the applicants that the police could not participate in the programme. In the introduction to the second programme, “The Blind Eye of the Police”, there is the following comment: “It was the police in the district of Frederikshavn who were responsible at that time for the investigations which led to the conviction of Did the police assume right from the start that X was the killer and did they therefore fail to investigate all the leads in the case, as otherwise required by the law? We have investigated whether there is substance in X's serious allegations against the police in the district of Frederikshavn.” Shortly afterwards in the programme the second applicant is interviewing a taxi driver. She explains to the applicant that a few days after the disappearance of X's wife, she was interviewed by two police officers and that during this interview she mentioned two observations she had made on 12 December 1981; she had seen a Peugeot taxi (which was later shown to have no relevance to the murder), but before that she had seen X and his son at about 5-10 minutes past noon. She had driven behind them for about one kilometre. The reason why she could remember the date and time so exactly was because she had had to attend her grandmother's funeral on that date at 1 p.The following comment is then made: Commentator: So in December 1981, shortly after X's wife disappears and X is in prison, the Frederikshavn Police is in possession of the taxi driver's statement in which she reports that shortly after 12 o'clock that Saturday she drives behind X and his son for about a kilometre...So X and his son were in Mølleparken [residential area] twice, and the police knew it in 1981. The interview went on: “ Second applicant : What did the police officers say about the information you provided? Taxi driver : Well, one of them said that it couldn't be true that X's son was in the car, but in fact I am 100% certain it was him because I also know the son because I have driven him to day-care. Second applicant : Why did he say that to you? Taxi driver : Well, he just said that it couldn't be true that the son was there. Second applicant : That it couldn't be true that you saw what you saw. Taxi driver : No, that is, he didn't say that I hadn't seen X, it just couldn't be true that the son was with him. Second applicant : These were the two police officers who questioned the taxi driver in 1981 and it was they who wrote the police report. We showed the taxi driver her statement from 1981, which she had never seen before. Taxi driver : It's missing the bit about – there was only ...about the Peugeot, there was nothing about the rest, unless you have another one. Second applicant : There is only this one. Taxi driver : But it obviously cannot have been important. Second applicant : What do you think about that? Taxi driver : Well it says, I don't know, well I think when you make a statement, it should be written down in any case, otherwise I can't see any point in it, and especially not in a murder case. Commentator : So the taxi driver claims that already in 1981 she had told two police officers that she had seen X and his son. Not a word of this is mentioned in this report. Second applicant : Why are you so sure that you told the police this, which at that time was 1981. Taxi driver : Well I am 100% sure of it and also, my husband sat beside me in the living room as a witness so ..., so that is why I am 100% certain that I told them. Second applicant : And he was there throughout the entire interview? Taxi driver : Yes, he was. Second applicant : Not just part of the interview? Taxi driver : No, he was there all the time. Commentator : It was not until 1990, nine years later, that the taxi driver heard of the matter again, shortly after the “Convicted of Murder” programme had been shown; even though the taxi driver's report had been filed as a so called 0-report, she was 'phoned by a Chief Inspector of the Flying Squad ( Rejseholdet ) who had been asked by the Public Prosecutor to do a couple of further interviews. Taxi driver : The Chief Inspector of the Flying Squad called me and asked whether I knew if any of my colleagues knew anything they had not reported, or whether I had happened to think of something, and I then told him on the 'phone what I said the first time about the Peugeot and that I had driven behind X and his son up to Ryets Street, and then he said that if he found out about anything which, otherwise ... or if there was anything, then he would ... then he would get in touch with me again, which he didn't do, not until a while afterwards when he called me and asked whether I would come for another interview. Second applicant : When you told the Chief Inspector of the Flying Squad in your telephone call that you followed X and his son was in the car, what did he say about that? Taxi driver : Well, he didn't say anything. Second applicant : He did not say that you had never reported this? Taxi driver : No, he didn't.” Then the second applicant has a short interview with X's new counsel: “ Second applicant : Have you any comment on the explanation the taxi driver has given now? X's new counsel : I have no comment to make at this time. Second applicant : Why not? X's new counsel : I have agreed with the public prosecutor, and the President of the Special Court of Revision, that statements to the press in this matter will in future only be issued by the Special Court of Revision. Commentator : Even though X's new counsel does not wish to speak about the case, we know from other sources that it was he who, in February this year, asked for the taxi driver to be interviewed again. So in March she was interviewed at Frederikshavn police station in the presence of the Chief Superintendent, which is clearly at odds with what the Public Prosecutor previously stated in public, namely that the Frederikshavn police would not get the opportunity to be involved in the new inquiries.” The interview with the taxi driver goes on: “ Second applicant : And what happened at the interview? Taxi driver : What happened was that I was shown into the Chief Inspector of the Flying Squad and the Chief Superintendent was there too. Second applicant : Was there any explanation given about why he was present? Taxi driver : No. Second applicant : So what did you say in this interview? Taxi driver : I gave the same explanations as I had done the first time when I was interviewed at home. Second applicant : 10 years before, that is. Taxi driver : Yes. Second applicant : And that was? Taxi driver : Well, that I had driven behind X and his son up to Ryets Street. Second applicant : What did they say about that? Taxi driver : They didn't say anything. Second applicant : The report, which was made in 1981, did you see it? Taxi driver : No. Second applicant : Was it there in the room? Taxi driver : There was a report there when I was being interviewed, but I wasn't allowed to see it. Second applicant : Did you expressly ask whether you could see the old report? Taxi driver : I asked whether I could see it but the Chief Inspector of the Flying Squad said I couldn't ...” After the interview with the taxi driver the commentator asks: “Now we are left with all the questions: why did the vital part of the taxi driver's explanation disappear – and who in the police or public prosecutor's office should carry the responsibility for this? Was it the two police officers who failed to write a report about it? Hardly, sources in the police tell us, they would not dare. Was it [the named Chief Superintendent] who decided that the report should not be included in the case? Or did he and the Chief Inspector of the Flying Squad conceal the witness's statement from the defence, the judges and the jury? ...” Pictures of the two police officers, the named Chief Superintendent and the Chief Inspector of the Flying Squad were shown on the screen simultaneously parallel with the above questions. The questions went on: “Why did the Chief Inspector of the Flying Squad 'phone the taxi driver shortly after the TV-programme 'Convicted of Murder'? After all, the police had taken the view that the taxi driver had no importance as a witness and had filed her statement amongst the O-reports. Why did the Chief Inspector of the Flying Squad not call her in for an interview when she repeated her original explanation on the telephone? Why was the taxi driver interviewed at the Frederikshavn police station in the presence of the Chief Superintendent, which was completely at odds with the Public Prosecutor's public statement? On 20 September last year [a named] Chief Constable stated to [a regional daily]: 'all the information connected to the case has been submitted to the defendants, the prosecution and the judges' Did the Chief Constable know about the taxi driver's statement, when he made this statement? Did the State Prosecutor know already in 1981 that there was a statement from a witness confirming that twice X had been in Mølleparken, and that X's son had been with him both times? Neither of them have wished to make any statement at all about the case.” In the meantime, at the request of X's new counsel, the taxi driver was interviewed by the police again on 11 March 1991. She stated that on 12 December 1981 she had attended her grandmother's funeral at 1 p.and that on her way to the funeral around five or ten past noon she had driven behind X and his son. She arrived at the funeral at the last minute before 1 p.She also explained that she had told the police about this when first interviewed in 1981. Later on 11 March 1991 the police made an enquiry which revealed that the funeral of the taxi driver's grandmother had indeed taken place on 12 December 1981, but at 2 p.Thereafter, the police held three interviews with the taxi driver during which she changed her explanation, inter alia, as follows. On 24 April 1991 she maintained having seen X shortly after noon but agreed that the funeral had taken place at 2 p.On her way to the funeral she realised she had forgotten a wreath. Thus, she had had to return to her home and had consequently arrived at the funeral just before 2 p.On 25 April 1991 she stated that she was not sure about the date or the time when she had seen X and his son. Moreover, she was uncertain whether, shortly after the murder, she had told the police about having seen In addition, she explained that during the shooting of her interview, which took place on 4 April 1991, the applicant Baadsgaard had suggested that she say something like “where is the other report” when he was to show her the report of 1981. On 27 April 1991 she initially stated that she would exclude having seen X and his son on 12 December 1981. She had never before connected this episode to the funeral. She also admitted having made up the story about the forgotten wreath, but had wanted “things to fit”. Later during the interview she maintained having seen X and his son on 12 December 1981, but at around 1 p.B. The criminal proceedings against the applicants On 23 May 1991 the Chief Superintendent reported the applicants and the TV station to the police for defamation. It appears, however, that the prosecution's decision as to whether or not to charge the applicants was adjourned pending the decision whether to reopen X's case. This was decided in the affirmative by the Special Court of Revision on 29 November 1991 after two hearings and the examination of ten witnesses, including the taxi driver. Two judges (out of five) in the Special Court of Revision found that new testimonial evidence had been produced on which X might have been acquitted, had it been available at the trial. Two other judges found that no new testimonial evidence had been produced on which X might have been acquitted, had it been available at the trial. The fifth judge agreed with the latter, but found that in other respects special circumstances existed which made it overwhelmingly likely that the available evidence had not been judged correctly. Accordingly, the court granted a retrial. In the meantime, following the television programmes, an inquiry had commenced into the police investigation of X's case. It appeared that the Police in Frederikshavn had not complied with section 751, subsection 2 of the Administration of Justice Act ( Retsplejeloven ), which was introduced on 1 October 1978 and which provides that a witness shall be given the opportunity to read his or her statement. Consequently, on 20 December 1991 the Prosecutor General ( Rigsadvokaten ) stated in a letter to the Ministry of Justice, that it was unfortunate and open to criticism that the police in Frederikshavn had not implemented the above provision as part of their usual routine and informed the Ministry that he had made an agreement with the State Police Academy that he would produce a wider set of guidelines concerning the questioning of witnesses, which could be integrated into the Police Academy's educational material. X's retrial ended with his acquittal on 13 April 1992. On 10 July 1992 the applicants became aware of the fact that they had been reported to the police. On their request, however, they were informed that no decision had yet been taken as to possible charges against them. On 19 January 1993 the Chief Constable in Gladsaxe informed the applicants that they were charged with defamation against the Chief Superintendent. On 28 January 1993 the applicants were questioned by the police in Gladaxe. A request of 11 February 1993 from the prosecution to seize the applicants' research material was examined at a hearing in the City Court of Gladsaxe ( Retten i Gladsaxe) on 30 March 1993 during which the applicants' counsel, claiming that the case concerned a political offence, requested that a jury in the High Court - instead of the City Court - try the case. Both requests were refused by the City Court of Gladsaxe ( retten i Gladsaxe ) on 28 May 1993. In June 1993 the prosecution appealed against the decision on seizure and the applicants appealed against the decision on venue. At the request of one of the applicants' counsel, an oral hearing was scheduled to take place in the High Court of Eastern <COUNTRY> ( Østre Landsret ) on 15 November 1993. However, on 7 October 1993 counsel challenged one of the judges in the High Court alleging disqualification and requested an oral hearing on the issue. The High Court decided on 15 October 1993 to refuse an oral hearing and on 11 November 1993 that the judge in question was not disqualified. It appears that counsel requested leave to appeal against this decision to the Supreme Court ( Højesteret ), but to no avail. As to the appeal against non-seizure and the question of venue, hearings were held in the High Court on 6 January and 7 March 1994, and by a decision of 21 March 1994 the High Court upheld the City Court's decisions. The applicants' request for leave to appeal to the Supreme Court was refused on 28 June 1994. On 5 July 1994 the prosecution submitted an indictment to the City Court, and a preliminary hearing was held on 10 November 1994 during which it was agreed that the case would be tried over six days in mid ‑ June 1995. However, as counsel for one of the parties was ill the final hearings were re-scheduled to take place on 21, 24, 28 and 30 August and 8 September 1995. On 15 September 1995 the City Court of Gladsaxe delivered a 68 ‑ page judgment finding that the questions put in the TV programme concerning the named Chief Superintendent amounted to defamatory allegations, which should be declared null and void. However, the court refrained from sentencing the applicants as it found that the applicants had reason to believe that the allegations were true. Also, the applicants were acquitted of a compensation claim raised by the widow of the named Chief Superintendent, as he had deceased before the trial. The judgment was appealed against by the applicants immediately and by the prosecution on 27 September 1995. On 15 April 1996 the prosecutor sent a notice of appeal to the High Court, and on 30 April 1996 he invited counsel for the applicants and the attorney for the widow of the Chief Superintendent to a meeting concerning the proceedings. Counsel for one of the parties stated that he was unable to attend before 17 June 1996, and accordingly the meeting was held on 25 June 1996. The High Court received the minutes of the meeting from which it appeared that counsel for one of the parties was unable to attend the trial before November 1996, and that he preferred the hearings to take place in early 1997. On 16 August 1996 the High Court scheduled the hearings for 24, 26 and 28 February and 3 and 4 March 1997. On 6 March 1997 the High Court gave judgment convicting the applicants of violating the personal honour of the Chief Superintendent by making and spreading allegations of an act likely to disparage him in the esteem of his fellow citizens, under Article 267, subsection 1 of the Penal Code. The allegations were declared null and void. The applicants were each sentenced to 20 day-fines of 400 Danish kroner (DKK) (or in the alternative 20 days' imprisonment) and ordered to pay compensation to the estate of the deceased Chief Superintendent of DKK 75,000. On 6, 16 and 25 March 1997 the applicants sought leave from the Leave to Appeal Board ( Procesbevillingsnævnet ) to appeal to the Supreme Court. Before deciding, the Board requested an opinion from the prosecuting authorities, namely the Chief of Police, the State Prosecutor and the Prosecutor General. On 27 June 1997 their joint opinion was submitted opposing leave to appeal. However, in the meantime it appears that a lawyer representing the TV station, Danmarks Radio , contacted the State Prosecutor, proposing that the public prosecution assist in bringing the case before the Supreme Court as, according to the TV station, the High Court's judgment was incompatible with the Media Responsibility Act ( Medieansvarsloven ). Consequently, the public prosecutors initiated a renewed round of consultation on this question, and their joint opinion was forwarded to the Board on 3 September 1997. Having heard the applicants' counsel on the prosecution's submissions, on 29 September 1997 the Board granted the applicants leave to appeal to the Supreme Court. The Prosecutor General submitted a notice of appeal and the case file to the Supreme Court on 3 October and 6 November 1997 respectively. As counsel wanted to engage yet another counsel, on 20 November 1997 they asked the Supreme Court whether costs in this respect would be considered legal costs. Moreover, they stated that their pleadings could not be submitted until early January 1998. On 17 March 1998 the Supreme Court decided on the question of costs, and on 19 March 1998 scheduled the trial for 12 and 13 October 1998. By a judgment of 28 October 1998, the High Court's judgment was upheld, though the compensation payable to the estate was increased to DKK 100,000. The majority of five judges held: “In the programme 'The Blind Eye of the Police' the applicants not only repeated a statement by the taxi driver that she had already explained to the police during their inquiries in 1981 that shortly after 12 p.on 12 December 1981 she had driven behind X for about one kilometre, but also, in accordance with the common premise for the programmes 'Convicted of Murder' and 'The Blind Eye of the Police', took a stand on the truth of the taxi driver's statement and presented the matters in such a way that viewers, even before the final sequence of questions, were given the impression that it was a fact that the taxi driver had given the explanation as she alleged to have done in 1981 and that the police were therefore in possession of this explanation in 1981. This impression was strengthened by the first of the concluding questions: '... why did the vital part of the taxi driver's explanation disappear and who, in the police or public prosecutor's office, should carry the responsibility for this?'. In connection with the scenes about the two police officers they pose two questions in the commentator's narrative, to which the indictment relates; irrespective of the kind of question, viewers undoubtedly received a clear impression that a report had been made about the taxi driver's statement that she had seen X at the relevant time on 12 December 1981; that this report had subsequently been suppressed; and that such suppression had been decided upon either by the named Chief Superintendent alone or by him and the Chief Inspector of the Flying Squad jointly. The subsequent questions in the commentator's narrative do not weaken this impression, and neither does the question as to whether the Chief Constable or the Public Prosecutor were aware of the taxi driver's statement. On this basis we find that in the programme 'The Blind Eye of the Police' the applicants made allegations against the named Superintendent which were intended to discredit him in the eyes of his peers, as described in Article 267, subsection 1 of the Penal Code ( Straffeloven ). We find further that it must have been clear to the applicants that they were, by way of their presentation, making such allegations. The applicants have not endeavoured to provide any justification but have claimed that there is no cause of action by virtue of Article 269, subsection 1 of the Penal Code – that a party who in good faith justifiably makes an allegation which is clearly in the general public interest or in the interest of other parties... As laid down in the Thorgeirson <COUNTRY> judgment (25 June 1992) there is a very extensive right to public criticism of the police. As in that decision there is, however, a difference between passing on and making allegations, just as there is a difference between criticism being directed at the police as such and at individual named officers in the police force. Even though being in the public eye is a natural part of a police officer's duties, consideration should also be given to his good name and reputation. As stated, the two applicants did not limit themselves in the programme to referring to the taxi driver's statement or to making value judgments on this basis about the quality of the police's investigations and the Chief Superintendent's leadership thereof. Neither did the applicants limit themselves to making allegations against the police as such for having suppressed the taxi driver's explanation, but made an allegation against the named Chief Superintendent for having committed a criminal offence by way of suppressing a vital fact. When the applicants were producing the programme, they knew that an application had been made to the Special Court of Revision for the case against X to be reopened and that as part of the Court of Revision's proceedings in dealing with the said application, the taxi driver had been interviewed by the police on 11 March 1991 at the request of X's defence as part of the proceedings to reopen the case. In consequence of the ongoing proceedings for reopening the case, the applicants could not count on the Chief Superintendent and the two police officers, who had interviewed the taxi driver in 1981, being prepared to participate in the programme and hence possibly anticipate proceedings in the Court of Revision. Making the allegations cannot accordingly be justified by lack of police participation in the programme. The applicants' intentions, in the programme, of undertaking a critical assessment of the police's investigation were proper as part of the role of the media in acting as a public watchdog, but this does not apply to every charge. The applicants had no basis for making such a serious charge against a named police officer and the applicants' opportunities for satisfying the purposes of the programme in no way required the questions upon which the charges are based to be included. On this basis, and even though the exemptions provided in Article 10 § 2 of the Convention must be narrowly interpreted, and even though Article 10 protects not only the content of utterances but also the manner in which they are made, we concur that the charges made are not excluded by Article 269, subsection 1 of the Penal Code. Indeed, as a result of the seriousness of the charges, we concur that there is no basis for charges to be dropped in accordance with Article 269, subsection 2 of the Penal Code. We agree further that there are no grounds for an acquittal under Article 272. We also concur with the findings on defamation. We agree with the High Court that the fact that the charges were made in a television programme on the national TV station ' Danmarks radio' and hence could be expected to get – as indeed they did – widespread publicity, must be regarded as an aggravating factor, as described in Article 267, subsection Considering that it is more than seven years since the programme was shown, we do not find, however, that there are sufficient grounds for increasing the sentence. For the reasons given by the High Court we find that the applicants must pay damages in compensation in damages to the heir of the Chief Superintendent. In this, it should be noted that it cannot be regarded as essential that the nature of the claim for damages in compensation was not stated in the writ of 23 May 1991 since the Chief Superintendent's claim for financial compensation could not relate to anything other than damages in compensation. Due to the seriousness of the allegation and the manner of its presentation, we find that the compensation should be increased to DKK 100,000.” The minority of two judges who wanted to acquit the applicants held, inter alia : “We agree that the statements covered by the indictment, irrespective of their having been phrased as questions, have to be regarded as indictable under Article 267, subsection 1 of the Penal Code and that the applicants had the requisite intentions. As stated by the majority, the question of culpability must be decided in accordance with Article 269, subsection 1, taken together with Article 267, subsection 1, interpreted in the light of Article 10 of the European Convention on Human Rights and the European Court of Human Right's restrictive interpretation of the exemptions under Article 10 § In reaching a decision, consideration must be given to the basis on which the applicants made their allegations, their formulation and the circumstances under which the allegations were made, as well as the applicants' intentions in the programme. ... We find that the applicants had cause to suppose that the taxi driver's statement that she had seen X on 12 December 1981 shortly past noon was true. We further find ...that the applicants had reason to assume that the taxi driver, when interviewed in 1981, had told the two police officers of having seen X ...We accordingly attach weight to the fact that it is natural for such an observation to be reported to the police; that it is also apparent from her explanation in the police report of 11 March 1991 that she had already told the police about her observations in 1981; and that her explanation about the reaction of the police to her information that X's son had been in the car strengthened the likelihood of her having reported the observation at the interview in 1981. ...It is apparent from the TV programme that the applicants were aware that the Frederikshavn police had not at that time complied with the requirement to offer a person interviewed an opportunity to see the records of his or her statements. The applicants may accordingly have had some grounds for supposing that the report of December did not contain the taxi driver's full statement or that there was another report thereon... We consider that the applicants, in putting the questions covered by the indictment, did not exceed the limits of freedom of expression which a case, such as the present one, relating to serious matters of considerable public interest, should be available to the media. We also attach some weight to the fact that the programme was instrumental in the Court of Revision's decision to hear witnesses and we attach some weight to X's subsequent acquittal. Overall, we accordingly find that [the allegations] are not punishable by virtue of Article 269, subsection 1 of the Penal Code... [We agree that] the allegation should be declared null and void since its veracity has not been proved..”

Denmark, Iceland

6

The applicant was born in 1957 and lives in Vranov nad Topľou. She was represented by Mr M . Mandzák , a lawyer practising in Bratislava. The Government were represented by their Co-Agent, Ms Bálintová, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, a former Minister of Justice and currently a judge of the Supreme Court, was sued by another judge, Mr X, for the protection of the latter’s personal integrity. After losing before the courts at two levels of jurisdiction, she turned to the Supreme Court. On 26 February 2015 the Supreme Court quashed the impugned decisions and ordered the first ‑ instance court to review the issue of bias on the part of the first ‑ instance judge who had ruled on the case. On 7 July 2015 the second ‑ instance court decided not to exclude the judge from the case, taking the view that she had been unbiased. On 1 June 2015 Mr X challenged the Supreme Court decision before the Constitutional Court, alleging that it had breached his right to a lawful judge because the issue of bias on the part of the judge in question had already been dealt with previously. On 22 September 2015 the applicant also lodged a constitutional complaint which she directed against the second-instance decision of 7 July 2015, relying on her right to a fair trial. Both Mr X’s and the applicant’s constitutional complaints were assigned to the same chamber of the Constitutional Court, which included Judge Y. 9 . In an application lodged on 30 November 2015, the applicant sought the exclusion of Judge Y from both sets of proceedings concerning her and Mr X’s respective constitutional complaints, on account of Judge Y’s bias stemming from her long-standing friendship with Mr X, which was a publicly known fact. Although the applicant conceded that she was not a party to the proceedings concerning Mr X’s constitutional complaint, she asserted that those proceedings nevertheless also related to her rights. On 10 December 2015 Judge Y informed the President of the Constitutional Court that Mr X, as a former judge of the Constitutional Court, was a former colleague of hers with whom (along with his wife) she remained in personal contact. In her view, those facts could give rise to an objective appearance of bias as regards the proceedings concerning Mr X’s constitutional complaint. 11 . In response to the applicant’s application, Judge Y reiterated, on 19 January 2016, that between 2000 and 2007 Mr X had been a former colleague of hers at the Constitutional Court, that they had studied law together, that she was still in contact with him and his wife, and that they enjoyed good relations. Therefore, Judge Y asked to be excluded from dealing with Mr X’s case and, if need be ( prípadne ), also the applicant’s case, although it was not entirely clear to her what the reasons might be for the applicant’s objection of bias on her part in relation to the applicant’s case. By Constitutional Court’s decision no. ÚS 35/2016 of 19 January 2016, taken by a chamber of three judges not including Judge Y, the latter was excluded from sitting in Mr X’s case on the basis of her above-mentioned statement. According to the Constitutional Court, it appeared from that statement that Judge Y remained in personal contact with the complainant and his wife, although she had not explicitly declared herself biased within the meaning of section 28(4) of the Constitutional Court Act. Referring to its own case-law, as well as that of the Court, the Constitutional Court observed that objective impartiality was based on external manifestations of a judge’s link to the case in issue or on his or her relationship with the (intervening) parties to proceedings. 13 . By decision no. ÚS 36/2016, given by the same chamber on the same day, the Constitutional Court ruled that Judge Y was not excluded from sitting in the applicant’s case. It held that the applicant had focused on the reasons pointing to Judge Y’s bias in relation to Mr X’s case. However, the connection between the proceedings concerning the two constitutional complaints, implicitly stemming from the parties’ positions in the proceedings before the general courts, was not a relevant basis for its taking a decision on the objection of bias in the applicant’s case. By decision no. ÚS 898/2016 of 14 December 2016, the applicant’s constitutional complaint was dismissed as manifestly ill-founded by a chamber of three judges, including Judge Y. RELEVANT LEGAL FRAMEWORK CONSTITUTIONAL COURT ACT 1993 15 . Under section 27(1) of the Constitutional Court Act 1993 (Law no. 38/1993), as in force at the material time, a judge of the Constitutional Court was excluded from dealing with a case where there could be doubts about his or her impartiality in view of his or her links to the subject matter of the proceedings, the parties or their representatives. The judge concerned had to inform the President of the Constitutional Court of the reasons for his or her exclusion without delay (section 27(2)). Section 28(1) entitled a party to the proceedings to challenge a judge for bias. Pursuant to section 28(3), where the Constitutional Court was to determine a case in a chamber, the decision on a judge’s exclusion for bias was to be taken by another chamber. Section 28(4) made similar provisions for a situation where a judge declared himself or herself biased. 17 . Section 51(2) provided that if the constitutional complaint was admissible and the circumstances so required, any individual who was or had been a party to the proceedings which had led to a final decision which was being challenged before the Constitutional Court had to be informed of the constitutional complaint and given the right to comment on it.

10

At the material time she was a journalist and the editor-in-chief of the newspaper S.P. (“S.P.” is a Russian abbreviation meaning “For Official Use Only”). In late September 2001 the applicant's newspaper published in the same issue several items concerning the large-scale misappropriation of budgetary funds allegedly committed by Mr , the head of the Sverdlovsk Regional Government, for the benefit of Mr K., an employee of the Moscow representative office of the Sverdlovsk Region. The first article, entitled “Gay scandal in the White House” (“ Гей-скандал в «Белом доме» ”), appeared under the name of “Sergey Petrov”. It opened with the following passage: “Once upon a time there lived the head of the Sverdlovsk Regional Government Mr He had everything: his position, high esteem and respect. And also the governor's love. But fell in love ... not with the governor or with his work, but with a twenty-five year-old employee of the region's representative office in Moscow, Mr K. How does one become a homosexual? Where does this “love” come from? We are simple unsophisticated people ... And we cannot imagine the scene that took place between them in the sumptuous building of the region's representative office in Moscow ... Rumour has it that the governor, on having learnt certain details, was furious ... and even fired K. from his position. But love, as we know, can overcome any obstacle. It finds not only a time, but also a place.” The article further asserted that, under the terms of an order signed by Mr in 1997, the regional railway company had extinguished its outstanding regional tax liability by purchasing a three-room flat in Moscow: “The flat was bought in Moscow at the following address: 9 Orshanskaya St., building 1, flat no. ... Initially the flat was even entered in the Government's balance sheet. However, after a while made a gift of the flat ... No, please do not think that he gave it to Mr K... [He gave it] to Mr K.'s father. Apparently, as a 'thank-you' for the upbringing of his son...” The author concluded in the following manner: “It might have been a private matter if it were not for two 'buts'. [Firstly,] two public figures, rather than private individuals, were linked together by Shakespearean passions in this story. In the instant case: the head of the Sverdlovsk regional government, , and a member of the regional parliament, K... Secondly, the flat was purchased at our expense, at the expense of our budget. Two billion roubles disappeared in 1997 into thin air. To date there has been no reimbursement or sanctions on the part of the tax authorities. The [character from a well-known Soviet picaresque novel] blushed a lot as he was stealing official property, but his like-minded accomplice never blushes. And yet, to this day the entire budget of the region is channelled through his hands. How can we ensure that he handles that money honestly?” On the left-hand column of the page the newspaper reproduced the text of a letter which the deputy director of the Sverdlovsk regional police had sent to the chairman of the Sverdlovsk regional audit commission. The police officer informed the auditor that the police were investigating the mechanism which involved extinguishing tax liabilities by acquiring a flat in Moscow, and asked the experts of the audit commission to assist by verifying the accounts of the railway company, the Sverdlovsk Regional Government and the private company that had acted as middleman in the transactions. The third item, at the bottom of the page, was an article entitled “History of the flat on Orshanskaya [Street]. Embezzlement of public funds: a step-by-step guide for beginners” (“ История квартирки на Оршанской. Пошаговая стратегия для начинающих казнокрадов ”). It described, in chronological order, the financial and real-estate transactions between the railway company and the intermediary company, as well as the orders signed by Mr and the sale of the flat to Mr K.'s father. On 12 October 2001 the prosecutor's office of the Sverdlovsk Region, acting on requests from and K., initiated criminal proceedings against the applicant for criminal libel and insult disseminated via the media, offences under Articles 129 § 2 and 130 § 2 of the Criminal Code. The investigator commissioned a linguistic and cultural expert examination of the articles in question. On 6 November 2001 the expert came to the conclusion that they contained allegations that and K. were homosexuals who had engaged in sexual intercourse in the representative office of the Sverdlovsk Region. The expert considered that the articles had sought to present a negative image of : “Tolerance towards the customs and mores of others is, in general, uncharacteristic of the Russian mentality, which is also evident in the attitude towards 'sexual minorities'. The Russian popular mindset and the Russian language retain a rigidly negative, rude and discourteous attitude to people of non-traditional sexual orientation (homosexuals and lesbians).” The expert noted that the author of the first publication had “a preference for emotional value-judgments”. The report concluded: “In this context the information on the sale and purchase of a flat in Moscow at the expense of the budget becomes sensational and seeks to persuade the reader to view as a dishonest manager, embezzler of public funds, and, in addition, an immoral person who craves sensual pleasure and physical attraction and is wanton and lustful. The pragmatic aim of the articles ... is to undermine [readers'] trust in and K. as politicians...” In late November 2001 counsel for the applicant privately commissioned a linguistic expert examination of the articles. The expert found that the word “homosexual” had no negative connotations and, therefore, could not be held to damage or undermine the honour and dignity of others. He noted that Russian society in recent years had become more tolerant towards homosexuality and a disclosure of someone's homosexuality in the mass media was not necessarily damaging to his reputation. Counsel asked the investigator to admit the report in evidence, but her request was refused on the ground that the expert had been a linguist rather than a specialist in cultural studies and thus had not been competent to perform the examination. On 29 and 30 November 2001 the applicant was charged with criminal libel and insult disseminated via the mass media. Following the applicant's indictment, she and her counsel filed a number of requests. They pointed out that the indictment did not identify which information the prosecution considered untrue. As the actual scope of the investigation had been limited to the allegations about 's homosexuality, the applicant insisted that its scope be extended to include the misappropriation of budgetary funds. Alternatively, if the charges were to be based exclusively on the allegations about 's and K.'s homosexuality, the applicant requested that a medical examination of and K. be carried out in order to establish their sexual orientation. On 3 and 28 December 2001 the investigator refused all the requests. He replied in general terms that the investigation was complete and that no further interviews or expert reports were necessary. 18 . On 28 December 2001 the final bill of indictment was served on the applicant and the case was referred for trial. The applicant was charged with criminal libel and insult on account of her having disseminated the information that “and K. [were] homosexuals and lovers who [had] engaged in a homosexual act in the building of the region's representative office in Moscow”. The charges did not refer to the allegations of misappropriation of budgetary funds. The case was referred for trial to the Verkh-Issetskiy District Court of Yekaterinburg, which decided to conduct the trial in private. The applicant and her counsel asked for a public hearing, while the victims and the prosecution stated their objections to giving further publicity to the case. The District Court maintained its decision to hear the case in private, noting that it related to the victims' private life. The applicant pleaded not guilty. She claimed that she had been convinced of the accuracy of the information on K.'s homosexuality because she knew him in person. She also requested leave to adduce in evidence certain material comprising witness statements about a same-sex relationship between and K.; the court refused this request. The court examined the witnesses, who testified that the applicant had been in charge of drafting the articles and publishing and distributing the newspaper. On 22 April 2002 the District Court gave judgment. It did not make any findings as to whether the information on 's and K.'s homosexuality was true or false. Instead, it noted their statements to the effect that the articles in question had been damaging to their reputation as politicians and public servants. Relying on the conclusions of the linguistic expert examination of 6 November 2001, the District Court found as follows: “Indeed, it has been established beyond doubt that the editor-in-chief of S.P. , Ya. Porubova, deliberately published ... [the impugned articles] which she had drafted. In these articles she stated that the Chairman of the Sverdlovsk Regional Government, Mr , and a member of the House of Representatives of the Legislative Assembly of the Sverdlovsk Region, K., were homosexual lovers who had engaged in homosexual intercourse in Moscow in the building of the representative office of the Sverdlovsk Region, that is to say, she disseminated information based on her insinuations and which she knew to be untrue and defamatory in respect of the victims. In an attempt to slander the victims, she arranged for the printing of 500,000 copies of the newspaper and distributed them in the Sverdlovsk Region. The investigating authorities correctly characterised her actions as libel under Article 129 § 2 of the Criminal Code, e., dissemination via the mass media of information known to be untrue and damaging to other persons' honour, dignity and reputation. In addition, Mrs Porubova related in these articles untrue information to the effect that [and K.] were homosexual lovers who had engaged in homosexual intercourse in Moscow in the building of the representative office of the Sverdlovsk Region, that is, she deliberately assessed the personal qualities and conduct of the victims [in terms] which were grossly degrading to their human dignity and which contradicted society's prevailing approach to the treatment of individuals. Such treatment of the victims must be considered obscene and damaging to their dignity. In order to make the first issue of the newspaper appear important and sensational, she undermined the honour and dignity of the victims in the mass media. Therefore, the investigating authorities correctly characterised her actions as an offence under Article 130 § 2 of the Criminal Code.” The applicant was found guilty as charged and sentenced to one and a half years' correctional work, with retention of fifteen percent of her wages for the benefit of the State. On 4 September 2002 the Sverdlovsk Regional Court upheld the conviction, endorsing the reasons given by the trial court. Subsequently, the applicant was dispensed from serving her sentence on the basis of an amnesty act in respect of women and minors passed by the Russian legislature on 30 November 2001.

5

The particular circumstances of the case Serge Clooth, who is a Belgian national born in 1964, currently resides at Angleur (<COUNTRY>). On 13 September 1984 Mr Eloy, investigating judge at the Brussels tribunal de première instance (first-instance court) remanded him in custody. The applicant was one of the suspects in a murder and arson case, known as the "mushroom house case" after the abandoned building where the police had found, in February of that year, the partly burned and mutilated corpse of a teenage girl. The German authorities - who had detained Mr Clooth in connection with another murder carried out on their territory, but then released him for lack of evidence - had extradited him to <COUNTRY> shortly before. At the time, Mr Clooth's criminal record showed previous convictions for attempted aggravated theft, for which he had been sentenced to two months' imprisonment (judgment of 30 June 1983 of the Liège Criminal Court, upheld on 26 June 1985 by the Liège Court of Appeal), and for desertion, for which he had been sentenced to one month's military detention suspended (judgment of 24 November 1983 of the Liège Military Court). A. The investigation Judge Eloy conducted the investigation of the case until his departure on indefinite leave on 30 September 1985. Prior to that he had been absent from his chambers either on health grounds or on leave from 4 March to 14 June, from 25 July to 27 August and from 28 August to 27 September 1985. He had ordered his last investigative measure - the fourteenth - on 29 January 1985. By that time, the investigators had drawn up 104 reports and carried out 86 interviews or follow-up interviews as well as several searches, seizures and confrontations. The investigating judge had himself questioned seven persons and sent letters rogatory to the German authorities. On 14 September 1984 he had instructed two psychiatric experts to examine Mr Clooth. After several reminders, they submitted a report on 21 June 1985 in which they concluded that the applicant suffered from serious mental disturbance which made it impossible for him to control his actions. They stated that a "judicious application of the law should take account of the need for him to be placed in long term psychiatric care". On 23 September 1986 one of them confirmed this diagnosis in every respect. At the request of the applicant's lawyer, another expert was appointed on 4 May 1987; in a report of 10 June, he referred to a chronic disturbance of Mr Clooth's personality, which made the latter dangerous. Until the appointment on 1 October 1985 of Judge Van Espen, two investigating judges replaced Judge Eloy in turn (see paragraph 9 above). On 26 March, 6 and 15 May, 6 and 9 August and 9 September 1985, they ordered interviews to be effected, two of which had been requested by the applicant's lawyer. From 26 March to 17 October 1985, the date of the first investigative measure ordered by Judge Van Espen, the investigators forwarded nine reports. However, no document was added to the file from 27 March to 5 May 1985. The steps taken by the investigating judges from 14 September 1984 to 17 October 1985 included twenty orders for investigative measures, seven interviews of accused, four appointments of experts, four sets of letters rogatory, two decisions to prefer charges and a warrant for a search and a body search. During this period, the police effected inter alia 127 interviews or follow-up interviews, thirteen confrontations, a search and a seizure, they detained one person for questioning, carried out two interceptions and made one "administrative arrest"; they also made at least twenty-nine requests for information and verifications. Over the same period twenty-five expert reports were drawn up. Mr Clooth was questioned sixteen times, including three times at his request, and confronted seven times with other persons; he altered his version of events or of how he had spent the time in question eleven times. On 31 July or 1 August 1986 the Brussels police obtained the statement of a person who claimed that he had discovered, from another source, the name of the murderer. The witness demanded that he should be allowed to remain anonymous and refused to sign his statement. When the text of the statement was passed to the police investigators, they asked that the informant's identity be disclosed; this entailed inquiries which were concluded on 6 January 1987. At this point, the investigative measures carried out by the investigating judge since 31 July 1986 included at least one interview of Mr Clooth, the issue of a search warrant, an inspection of the site and seven orders for specific investigative measures. For their part, the police had drawn up thirty-one reports and effected, among other things, a search, a seizure, made fourteen requests for information or verifications and carried out twenty-three interviews or follow-up interviews, including one of Mr Clooth, requested, in particular, by the latter himself. Judge Van Espen had also ordered the interview after the applicant had changed his version of events at his monthly appearance before the chambre du conseil (Review Chamber). According to the Government, and they have not been contradicted on this point by him, the applicant gave twenty different versions in the course of the investigation. By 17 November 1987, the date of Mr Clooth's release (see paragraph 30 below), more than 175 reports and notes had been drawn up since Judge Van Espen had taken over the case (see paragraph 11 above). B. The proceedings before the investigation organs On 17 September 1984 the chambre du conseil of the Brussels tribunal de première instance had confirmed the detention order of 13 September (see paragraph 8 above). On 12 October it decided that the applicant should remain in detention on remand. In respect of the grave and exceptional circumstances on which the lawfulness of such a measure was conditional (see paragraph 32 below), it cited the seriousness of the acts threatening public safety of which Mr Clooth was accused, the danger to society which he represented, the needs of the investigation and the risks of collusion. Whereas the applicant's principal co-accused were released between October and December 1984, the same chambre du conseil extended the contested detention by one month on 29 October, 28 November and 28 December 1984, and then on 28 January, 27 February, 27 March, 26 April, 23 May and 21 June 1985. On each occasion it deemed that the grave and exceptional circumstances affecting public safety, which it had noted on 12 October 1984 (see paragraph 16 above), required the continuation of the incarceration. On an appeal by the applicant, the indictments division (chambre des mises en accusation) of the Brussels Court of Appeal confirmed the order of 21 June on 5 July. In its view, Mr Clooth's numerous confessions, although they had all been retracted, gave grounds for fearing that he would be the object of reprisals from his circle of acquaintances; as his latest version of events had not been verified and as no conclusions had been reached regarding his mental state, his release from prison would moreover create a "serious danger of public safety" and would risk impeding the investigation. Invoking the same grounds, simply by reference to the decision of 5 July (see paragraph 17 above), the chambre du conseil extended the contested measure on 19 July, 19 August, 18 September, 18 October, 18 November and 18 December 1985, then on 17 January, 14 February, 14 March, 14 April, 14 May and 13 June 1986. On 11 July 1986 it made an order further extending the detention, stating the following grounds: "... the crime being investigated is of exceptional gravity and is a serious threat to public safety; the accused has made admissions and retracted them, but the precise details that he has given provide grounds for suspecting that he committed the crime; the investigation is continuing, the most recent investigative measures dating from May and June 1986, effected with due respect for the rights of the accused who, by retracting his confessions, has compelled the investigators to undertake inquiries in every possible direction in order to identify other perpetrators, co-perpetrators or accomplices; in view of the complexity of the inquiry and the foregoing considerations, Article 5 para. 3 (art. 5-3) of the Convention on Human Rights has in no way been infringed ... ." On 25 July the Brussels indictments division dismissed the applicant's appeal in the following terms: "There are serious indications that the accused is guilty of participating in a murder and an act of arson; these particularly serious offences show a total disregard for human life; This dangerous state of mind, combined with the finding that the accused was at the material time and is still in a serious state of mental disturbance, making him incapable of controlling his actions and requiring long-term psychiatric care, constitutes a serious danger to public safety inasmuch as it is to be feared that the accused, if released, would commit similar offences; The accused's numerous statements and their varying content have made the investigation especially difficult and have necessitated further extensive inquiries; It is wrongly asserted that there has been a violation of Article 5 para. 3 (art. 5-3) of the Convention for the Protection of Human Rights in this case, more specifically on the ground that the investigation has not progressed any further in recent months; The evidence contradicts this assertion ... ." Mr Clooth appealed to the Court of Cassation. He relied inter alia on Article 5 para. 3 (art. 5-3) of the Convention and criticised the indictments division for not having answered two complaints, one based on the lack of investigative measures during the months following the departure of Judge Eloy, and the other on the belated submission of the expert's report (see paragraphs 9-12 above). In a decision dismissing the appeal on 8 October 1986, the Court of Cassation took the view that "having ... stated the reasons for the length of the investigation, the judgment [had] impliedly but clearly [decided] that any delays in the completion of the investigative measures referred to in the appeal submissions had not had an effect on the length of the investigation so that the Court of Appeal was not obliged to consider whether or not such delays were justified ... ." In the meantime the chambre du conseil had extended the applicant's detention on 11 August and 10 September and the indictments division had dismissed the applicant's appeals on 22 August and 25 September. The latter decision noted, among other things, that the innumerable investigative measures, inquiries and interviews, made necessary by the seriousness of the offences and by the applicant's numerous and changing statements, justified his being kept in detention. The very attitude of the accused showed that his release would have been liable to compromise the conduct of the investigation; in addition, according to the psychiatric expert, he constituted a "particular danger to society". The applicant filed an appeal in the Court of Cassation, which was dismissed on 3 December 1986. On 10 October the chambre du conseil had ordered a further extension of the detention, confirmed on 22 October by the indictments division. In the latter's view, three recent reports attested to the fact that the investigation had been conducted with diligence since the decision of 25 September (see paragraph 20 above), whose grounds continued moreover to be valid. On 7 January 1987 the Court of Cassation dismissed the applicant's appeal; it considered that the indictments division had satisfactorily answered the submissions and in particular those alleging a violation of Article 5 para. 3 (art. 5-3) on account of delays in the completion of important investigative measures, the lack of investigative measures from 13 May to 4 June and from 4 June to 31 July 1986 and the failure by the police to identify a witness (see paragraph 13 above). On 10 November 1986, referring to the grounds of the decision of 22 October (see paragraph 21 above), the chambre du conseil again decided that the applicant should remain in detention. On appeal the indictments division confirmed the decision on 21 November; it took the view that a new version of events given by the accused had made it essential to carry out verifications, which were still in progress. On 10 December 1986 and 9 January 1987 the chambre du conseil made other similar orders. They were founded on the decision of 21 November (see paragraph 22 above) and the indictments division upheld them on 24 December 1986 and 21 January 1987. On 6 February the chambre du conseil relied on that last decision in order to refuse once again to release the applicant. On 20 March the indictments division dismissed the applicant's appeal against an extension ordered on 6 March by the chambre du conseil; it gave the following grounds: "The factors peculiar to the case or to the accused's personality, specified in the decisions of 25 July 1986, 25 September 1986, 22 October 1986 and 21 November 1986, constitute grave and exceptional circumstances, which still obtain and which concern public safety to the extent that it is necessary for the detention on remand to be continued ... ." The chambre du conseil gave the same grounds in an order of 6 April 1987 keeping Mr Clooth in detention. On 16 April the indictments division dismissed his appeal. In addition to the risk of his absconding, it invoked the threats to public safety which stemmed in its view from the seriousness of the alleged offences and the applicant's mental state. It added that "the investigation has been continued with no interruptions whatsoever to date in spite of the successive confessions of the accused in different contexts and this attitude in itself fully explains the length of the detention". On 4 May, 3 June and 3 July 1987 the chambre du conseil extended the detention further, basing its decisions on the reasoning set out in the judgments of 20 March and 16 April (see paragraphs 24 and 25 above). The applicant filed appeals against the orders of 4 May and 3 July; his appeals were dismissed by the indictments division on 15 May and 17 July. In the second decision, it stated that letters rogatory to <COUNTRY> were in the process of being executed and that a recent psychiatric report, dated 10 June 1987, had confirmed how deeply disturbed the applicant's personality was and the danger that he might represent for others (see paragraph 10 above). The same considerations led the chambre du conseil to extend the detention on 3 August and 2 September 1987 and the indictments division to confirm those decisions on 11 August and 16 September. In written submissions of 11 July, 22 July, 24 September, 22 October 1986 and 16 April 1987, Mr Clooth complained on each occasion of considerable delays in the conduct of the inquiry and demanded his release in accordance with Article 5 para. 3 (art. 5-3) of the Convention. He contended that neither his personality nor the charges brought against him nor the interests of public safety could justify his continued incarceration. On 2 October 1987 the chambre du conseil ordered Mr Clooth's provisional release, but on appeal by the public prosecutor the indictments division set aside this decision on 16 October 1987. It considered that the grave and exceptional circumstances affecting public safety, referred to in its decisions of 20 March and 16 April 1987 (see paragraphs 24 and 25 above), continued to make the applicant's detention necessary; in addition, the reasons relating to the applicant's mental state (see paragraph 26 above) subsisted. On 23 December 1987 the Court of Cassation declared the applicant's appeal to be devoid of purpose as his detention had since come to an end. On 2 November the chambre du conseil had in fact ordered Mr Clooth's release. The indictments division had upheld this decision on 17 November, on the ground that a reasonable time within the meaning of Article 5 para. 3 (art. 5-3) of the Convention had been exceeded. Nevertheless, the applicant remained in detention pursuant to a detention order made in connection with a robbery case. On 6 November 1990 the chambre du conseil made an order finding that the applicant and his co-accused had no case to answer; this order subsequently became final. Relevant domestic law At the material time pre-trial detention was governed by a Law of 20 April 1874, which had been amended several times since its enactment. The principal provisions relevant to the present case were worded as follows: Article 1 "After the examination, the investigating judge may issue a detention order where the offence is such as to entail a term of imprisonment (emprisonnement correctionnel) of three months or a heavier sentence. If the accused is resident in <COUNTRY>, the judge may issue such an order only in grave and exceptional circumstances, where this measure is necessary in the interests of public safety. ... ." Article 2 "The detention order, in the case provided for in the second paragraph of the preceding Article, shall specify the grave and exceptional circumstances affecting public safety which justify the arrest, indicating the factors peculiar to the case or to the accused's personality." Article 4 "The detention order shall not remain in force, if in the five days following the examination, it is not confirmed by the chambre du conseil after hearing the report of the investigating judge and the views of the Crown prosecutor and the accused. ... ." Article 5 "Where the chambre du conseil has not ruled on the charge in the month following the examination, the accused shall be released, unless the chambre du conseil, by a reasoned order, adopted unanimously, after hearing the views of the Crown prosecutor and the accused or his counsel, states that grave and exceptional circumstances affecting public safety require the continuation of the detention. The order shall specify such circumstances, indicating the factors peculiar to the case or to the personality of the accused. The same procedure shall be followed at monthly intervals, if the chambre du conseil has not ruled on the charge by the end of a new month. ... ." Article 19 "The accused and the prosecuting authority may appeal to the indictments division from the orders of the chambre du conseil made in the cases provided for in Articles 4, 5 ... ."

Luxembourg, Belgium

8

THE PARTICULAR CIRCUMSTANCES OF THE CASE Mr David Norris was born in 1944. He is an Irish citizen. He is now, and has been since 1967, a lecturer in English at Trinity College, Dublin. At present he sits in the second chamber (Seanad Eireann) of the Irish Parliament, being one of the three Senators elected by the graduates of Dublin University. Mr Norris is an active homosexual and has been a campaigner for homosexual rights in <COUNTRY> since 1971; in 1974 he became a founder member and chairman of the Irish Gay Rights Movement. His complaints are directed against the existence in <COUNTRY> of laws which make certain homosexual practices between consenting adult men criminal offences. In November 1977 the applicant instituted proceedings in the High Court (see paragraphs 21-24 below) claiming that the impugned laws were no longer in force by reason of the effect of Article 50 of the Constitution of <COUNTRY>, which declared that laws passed before the Constitution but which were inconsistent with it did not continue to be in force. Evidence was given of the extent to which the applicant had been affected by that legislation and had suffered interference with his right to respect for private life. Salient points in this evidence were summarised as follows: (i) The applicant gave evidence of having suffered deep depression and loneliness on realising that he was irreversibly homosexual and that any overt expression of his sexuality would expose him to criminal prosecution. (ii) The applicant claimed that his health had been affected when in 1969 he fainted at a Dublin restaurant and was sent to Baggot Street Hospital for tests which resulted in his being referred to a psychiatrist. He was under the psychiatric care of Dr. McCracken for a period in excess of six months. Dr. McCracken’s advice to the applicant was that, if he wished to avoid anxiety attacks of this kind, he should leave <COUNTRY> and live in a country where the laws relating to homosexual behaviour had been reformed. Dr. McCracken stated in evidence that the applicant was in a normal condition at the time of the first consultation. He did not recall being made aware of a history of collapse. (iii) No attempt had been made to institute a prosecution against the applicant or the organisation of which the applicant was then the chairman (see paragraph 9 above). The applicant informed the police authorities of his organisation’s activities but met with a sympathetic response and was never subjected to police questioning. (iv) The applicant had participated in a television programme on RTE, the State broadcasting company, in or about July 1975. The programme consisted of an interview with him in the course of which he admitted to being a homosexual but denied that this was an illness or that it would prevent him from functioning as a normal member of society. A complaint was lodged against that programme. The Broadcasting Complaints Advisory Committee’s report referred to the existing law criminalising homosexual activity and upheld the complaint on the ground that the programme was in breach of the Current/Public Affairs Broadcasting Code in that it could be interpreted as advocacy of homosexual practices. (v) The applicant gave evidence of suffering verbal abuse and threats of violence subsequent to the interview with him on RTE, which he attributed in some degree to the criminalising of homosexual activity. He also alleged in evidence that in the past his mail was opened by the postal authorities. (vi) The applicant admitted to having a physical relationship with another man and that he feared that he or the person with whom he had the relationship, who normally lived outside <COUNTRY>, could face prosecution. (vii) The applicant also claimed to have suffered what Mr Justice Henchy in a dissenting judgment in the Supreme Court (see paragraph 22 below) alluded to as follows: "... fear of prosecution or of social obloquy has restricted him in his social and other relations with male colleagues and friends: and in a number of subtle but insidiously intrusive and wounding ways he has been restricted in or thwarted from engaging in activities which heterosexuals take for granted as aspects of the necessary expression of their human personality and as ordinary incidents of their citizenship." It is common ground that at no time before or since the court proceedings brought by the applicant has he been charged with any offence in relation to his admitted homosexual activities. However, he remains legally at risk of being so prosecuted, either by the Director of Public Prosecutions or by way of a private prosecution initiated by a common informer up to the stage of return for trial (see paragraphs 15-19 below). THE RELEVANT LAW IN IRELAND A. The impugned statutory provisions Irish law does not make homosexuality as such a crime. But certain statutory provisions in force in <COUNTRY> penalise certain homosexual activities. Some of these are penalised by the Offences against the Person Act, 1861 ("the 1861 Act") and the Criminal Law Amendment Act, 1885 ("the 1885 Act"). The provisions relevant to the present case are sections 61 and 62 of the 1861 Act. Section 61 of the 1861 Act, as amended in 1892, provides that: "Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be kept in penal servitude for life." Section 62 of the 1861 Act, as similarly amended, provides that: "Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon a male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding ten years." The offences of buggery or of an attempt to commit the same may be committed by male or female persons. Section 11 of the 1885 Act deals only with male persons. It provides that: "Any male person who, in public or in private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour." Sections 61 and 62 of the 1861 Act should be read in conjunction with the provisions of the Penal Servitude Act 1891, section 1, by virtue of which the court is empowered to impose a lesser sentence of penal servitude than that mentioned in the 1861 Act or, in lieu thereof, a sentence of imprisonment for a term not exceeding two years or a fine. The provisions of the 1861 Act and of the 1885 Act are also subject to the power given to the court by section 1(2) of the Probation of Offenders Act 1907, to apply, by way of substitution, certain more lenient measures. The terms "hard labour" and "penal servitude" no longer have any practical significance, since anyone now sentenced to "hard labour" or "penal servitude" will, in practice, serve an ordinary prison sentence. The 1885 Act is the only one of the legislative provisions attacked in the instant case that can be described as dealing solely with homosexual activities. What particular acts in any given case may be held to amount to gross indecency is a matter which is not statutorily defined and is therefore for the courts to decide on the particular facts of each case. B. The enforcement of the relevant statutory provisions The right to prosecute persons before a court other than a court of summary jurisdiction is governed by Article 30, section 3 of the Constitution which is as follows: "All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose." Section 9 of the Criminal Justice (Administration) Act, 1924, as adapted by the Constitution (Consequential Provisions) Act, 1937, provides that: "All criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney General of <COUNTRY>." The provisions of the Prosecution of Offences Act 1974 extended to the Director of Public Prosecutions most of the prosecuting functions exercised by the Attorney General. The Director of Public Prosecutions (an office created by that Act) is independent of the Government and a permanent official in the Civil Service of the State as distinct from the Civil Service of the Government. Any member of the public, whether an Irish citizen or not, has the right as a "common informer" to bring a private prosecution. He need not have any direct interest in the alleged offence or be personally affected by it. A private prosecutor’s rights are limited in respect of offences which are not triable summarily. In The State (Ennis) Farrell [1966] Irish Reports 107, it was held by the Supreme Court that the effect of section 9 of the Criminal Justice (Administration) Act 1924 was that a private prosecutor may conduct a prosecution up to the point where the judge of the District Court decides that the evidence is sufficient to warrant a committal for trial in cases of indictable offences e. triable with a jury. Thereafter the Attorney General, or now also the Director of Public Prosecutions, becomes dominus litis and must then consider whether or not he should present an indictment against the accused who has been returned by the District Court for trial with a jury. The offences which are at issue in the present case, namely those set out in sections 61 and 62 of the 1861 Act and in section 11 of the 1885 Act, are indictable offences. Indictable offences are only triable summarily in the District Court if the judge of the District Court is of the opinion that the facts constitute a minor offence and the accused, on being informed of his right to trial by jury, expressly waives that right. This availability of summary trial is provided for by the Criminal Justice Act 1951 and is limited to those indictable offences set out in the Schedule to that Act. This does not include the offences under sections 61 and 62 of the 1861 Act. The summary trial procedure is available in respect of an offence under section 11 of the 1885 Act where the accused is over the age of sixteen years and the person with whom the act is alleged to have been committed is legally unable to consent for being under the age of sixteen years or an idiot, an imbecile or a feeble-minded person. Thus a summary trial can never be had in cases involving consenting adults and, save where the accused pleads guilty, the case can be heard only with a jury whether the prosecution was commenced by a private prosecutor or by the Director of Public Prosecutions. Moreover, the Criminal Procedure Act 1967 permits a person charged with any indictable offence (save an offence under the Treason Act, 1939, murder, attempt to murder, conspiracy to murder, piracy or an offence under section 3 (1) (i) of the Geneva Conventions Act, 1962) to plead guilty in the District Court. If the Director of Public Prosecutions, or the Attorney General, as the case may be, consents, the case may be disposed of summarily in that Court. If sentence is imposed by the District Court, it cannot exceed twelve months’ imprisonment. If the judge of the District Court is of opinion that the offence warrants a greater penalty, he may send the accused forward to the Circuit Court for sentence. In such a case an accused may change his plea to one of "not guilty" and the case will then be tried with a jury. The Circuit Court has a discretion to impose any sentence up to the limit permitted by the relevant statutory provision. Therefore, while a private prosecution may be initiated by a common informer, a prosecution brought under one of the impugned provisions cannot proceed to trial before a jury unless an indictment is laid by the Director of Public Prosecutions. According to the Office of the Director of Public Prosecutions there have not been any private prosecutions arising out of the homosexual activity in private of consenting male adults since the inception of the Office in 1974. The following statement was made by the Office of the Director of Public Prosecutions in September 1984, in reply to a question asked by the Commission: "The Director has no stated prosecution policy on any branch of the criminal law. He has no unstated policy not to enforce any offence. Each case is treated on its merits." The Government’s statistics show that no public prosecutions, in respect of homosexual activities, were brought during the relevant period except where minors were involved or the acts were committed in public or without consent. THE PROCEEDINGS BEFORE THE NATIONAL COURTS In November 1977 the applicant brought proceedings in the Irish High Court seeking a declaration that sections 61 and 62 of the 1861 Act and section 11 of the 1885 Act were not continued in force since the enactment of the Constitution of <COUNTRY> (see paragraph 10 above) and therefore did not form part of Irish law. Mr Justice McWilliam, in his judgment of 10 October 1980, found, among other facts, that "One of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow from that unfortunate disease". However, he dismissed Mr Norris’s action on legal grounds. On appeal, the Supreme Court, by a three-to-two majority decision of 22 April 1983, upheld the judgment of the High Court. The Supreme Court was satisfied that the applicant had locus standi to bring an action for a declaration even though he had not been prosecuted for any of the offences in question. The majority held that "as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in, such right, if it exists, is threatened, and the plaintiff has standing to seek the protection of the court". In the course of these proceedings it was contended on behalf of the applicant that the judgment of 22 October 1981 of the European Court of Human Rights in the Dudgeon case (Series A no. 45) should be followed. In support of this plea, it was argued that, since <COUNTRY> had ratified the European Convention on Human Rights, there arose a presumption that the Constitution was compatible with the Convention and that, in considering a question as to inconsistency under Article 50 of the Constitution, regard should be had to whether the laws being considered are consistent with the Convention itself. In rejecting these submissions, Chief Justice O’Higgins, in the majority judgment, stated that "the Convention is an international agreement" which "does not and cannot form part of [<COUNTRY>’s] domestic law nor affect in any way questions which arise thereunder". The Chief Justice said: "This is made quite clear by Article 29, section 6, of the Constitution which declares: - ‘No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.’" In fact, the European Court of Human Rights already noted in its judgment of 1 July 1961 in the Lawless case (Series A no. 3, pp. 40-41, para. 25) that the Oireachtas had not introduced legislation to make the Convention on Human Rights part of the municipal law of <COUNTRY>. The Supreme Court considered the laws making homosexual conduct criminal to be consistent with the Constitution and that no right of privacy encompassing consensual homosexual activity could be derived from "the Christian and democratic nature of the Irish State" so as to prevail against the operation of such sanctions. In its majority decision, the Supreme Court based itself, inter alia, on the following considerations: "(1) Homosexuality has always been condemned in Christian teaching as being morally wrong. It has equally been regarded by society for many centuries as an offence against nature and a very serious crime. (2) Exclusive homosexuality, whether the condition be congenital or acquired, can result in great distress and unhappiness for the individual and can lead to depression, despair and suicide. (3) The homosexually oriented can be importuned into a homosexual lifestyle which can become habitual. (4) Male homosexual conduct has resulted, in other countries, in the spread of all forms of venereal disease and this has now become a significant public health problem in England. (5) Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution." The Supreme Court, however, awarded the applicant his costs, both of the proceedings before the High Court and of the appeal to the Supreme Court.

Ireland

A. Background information and the proceedings before the domestic courts The first, second, third, fourth, eighth, ninth, tenth, eleventh and twelfth applicants, and legal predecessor of the fifth, sixth and seventh applicants, were all employees of the Aluminium Plant in Podgorica ( Kombinat aluminijuma Podgorica ). On various dates they were all certified as totally unfit for work ( potpuni gubitak radne sposobnosti ). Their disability ( invalidnost ) was partly the result of a work-related illness. Between 10 and 16 November 2005 they were made redundant and received a severance payment. On various dates thereafter the Pension Fund ( Republički fond penzijskog i invalidskog osiguranja ) in Podgorica recognised their right to a disability pension ( pravo na invalidsku penziju ), effective from the date on which they had respectively been certified disabled. On various subsequent dates the first, second, third, fourth, eighth, ninth, tenth, eleventh and twelfth applicants, and legal predecessor of the fifth, sixth and seventh applicants, filed claims against their former employer, seeking damages consisting of the difference between the disability pension they were receiving and the salary which they would have received had they not been made redundant. The amounts claimed varied between 581 euros (EUR) (for the third applicant) and EUR 9,273.64 (for the fourth applicant). They expressly stated, either in their claims or further submissions made in the context of appeals, appeals on points of law and/or replies to the defendant’s submissions, that these were labour-related claims exempted from court fees. The fifth, sixth and seventh applicants continued the proceedings in their legal predecessor’s stead as he had passed away in the meantime. Some of the applicants were successful before the Court of First Instance ( Osnovni sud ) in Podgorica, while others were not. However, all the applicants were unsuccessful in the second-instance proceedings before the High Court ( Viši sud ) in Podgorica, which rendered its decisions between 7 November 2008 and 9 October 2009. The first, third, fourth, eighth, tenth, eleventh, and twelfth applicants lodged an appeal on points of law ( revizija ) with the Supreme Court ( Vrhovni sud ) in Podgorica. Between 18 February and 3 December 2009 the Supreme Court upheld the High Court’s judgments and, in substance, endorsed its reasoning. The second, fifth, sixth, seventh and ninth applicants did not lodge an appeal on points of law. In its reasoning in the applicants’ cases, the High Court and the Supreme Court held, inter alia , that the applicants’ employment had been terminated because they had been made redundant, not because their right to a disability pension had been recognised. In particular, when their right to a pension was subsequently recognised they were no longer employed and thus had no salary in any event; accordingly, no damage had been sustained and their claims were unfounded. In six other judgments, submitted by the applicants, rendered between 7 December 2006 (by the Supreme Court) and 2 February 2009 (by the High Court) the same courts had ruled in favour of the applicants’ colleagues, notwithstanding the fact that their claims were based on the same facts and concerned identical legal issues. In their reasoning in those other cases, the courts explained, inter alia , that the claim for damages was justified on grounds of their disability and that the employer had to compensate them according to the extent to which the work-related illness had caused the disability. At the same time, the courts found that the claimants’ redundancy and the accompanying payment, which the claimants had received, had nothing to do with the legal grounds for seeking damages for their disability. These judgments became final and enforceable ( pravosnažne i izvršne ). B. Other relevant facts All the applicants lodged constitutional appeals. On 24 March 2011 the Constitutional Court ( Ustavni sud ) rejected ( odbacio ) the constitutional appeal lodged by the ninth applicant on the grounds that he had not exhausted all effective domestic remedies; in particular, he had not lodged an appeal on points of law with the Supreme Court. Between 24 December 2009 and 10 March 2011 the Constitutional Court dismissed ( odbio ) the constitutional appeals lodged by all the other applicants on the grounds that the impugned judgments did not depart from established case-law.

He is currently serving a prison term in the <COUNTRY>. A. Background In 1992, in the context of criminal proceedings for large-scale money laundering conducted against the applicant before the <COUNTRY> District Court for the District of Rhode Island (“the Rhode Island District Court”), the Austrian courts were requested under letters rogatory to seize assets which had been found in two safes in Vienna rented by the applicant. On 10 February 1992 the Vienna District Criminal Court ordered the seizure and put the assets, mostly cash and bearer bonds, at the disposal of the Rhode Island District Court as evidence in the criminal proceedings against the applicant, on the condition that the assets were to be returned upon termination of the proceedings. The parties disagree as to whether or not the applicant was the owner of the assets at issue. The applicant claims that the assets stemmed from lawful business activities carried out until 1988, while the Government claim that they stemmed from the money laundering in 1990 and 1991 of which he was convicted (see below) and that he was holding them as a trustee for the drug cartel for which he had worked. In February 1993 the Rhode Island District Court convicted the applicant of money laundering and related charges, finding that he had headed an organisation which had laundered more than a hundred million <COUNTRY> dollars (USD) in 1990 and 1991, and sentenced him to 660 years’ imprisonment. Subsequently, on 30 August 1993, the court issued a preliminary forfeiture order. On 28 June 1995 the <COUNTRY> Court of Appeals, First Circuit, dismissed an appeal by the applicant against his conviction and against the forfeiture order. The reasons, in so far as relevant in the context of the present case, were as follows. As to the applicant’s claim that he was represented at his trial by counsel (H.) who had a conflict of interest, the court noted that the applicant had been informed of his rights but had insisted on being represented by counsel H. Finally, he had executed a written waiver retaining H. as counsel and confirming that he had been fully advised and had considered the possible adverse consequences for his defence. Since counsel H. had only informed the court in vague terms that he feared being charged or called as a witness in the applicant’s case, the District Court was justified in accepting the waiver. In any event, the applicant was represented by a second, conflict-free counsel, As to the applicant’s complaint that he had had no hearing in the forfeiture proceedings, the appellate court noted that the applicant, represented by counsel, had waived his right to a jury hearing in the separate forfeiture proceedings on the ground that they purely concerned matters of legal argument. The case had been heard on 26 March 1993 in the presence of the applicant’s counsel. The applicant had not been present since he had to appear before another court. Counsel had requested that the applicant be heard but had refused the court’s offer to have a further hearing in the presence of the applicant before the delivery of the judgment. On 25 March 1996 the <COUNTRY> Supreme Court rejected an appeal on points of law by the applicant. On 7 November 1997 the Rhode Island District Court issued a final forfeiture order relating to a total amount of USD 136 million, including some USD 9 million in respect of the applicant, “being the proceeds of narcotics money laundering for which the following property has been partially substituted”. There followed an enumeration of cash amounts in Swiss francs, <COUNTRY> dollars and Austrian schillings seized in Vienna in 1992 and a list of bearer bonds issued by Austrian banks and, finally a bank account in Vienna. On 9 December 1997 the Rhode Island District Court issued letters rogatory which, so far as relevant, read as follows: “... the <COUNTRY> District Court for the District of Rhode Island requests enforcement in <COUNTRY> of the enclosed Final Forfeiture Order against said cash, bonds and other financial instruments. To the extent possible under Austrian law and consistent with any sharing agreement between the <COUNTRY> and <COUNTRY>, please convert the cash and the proceeds of the bonds and other instruments into <COUNTRY> dollars and transfer those funds by wire into the above referenced <COUNTRY> Customs Service Account. ...” The <COUNTRY> Department of Justice transmitted this request to the Austrian authorities on 18 December 1997. On 23 January 1998 the Austrian Ministry of Justice requested the Vienna Senior Public Prosecutor’s Office to open “ exequatur ” proceedings to enforce the foreign court’s decision. B. The proceedings before the Austrian courts Preliminary confiscation in order to secure the enforcement of the final forfeiture order of 7 November 1997 On 12 March 1998 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ), as an interim measure, ordered the confiscation of the applicant’s assets, of a total value of about 80,000,000 Austrian schillings (ATS – approximately 5,800,000 euros), in cash, bearer bonds and a bank account, for the purpose of securing the enforcement of the final forfeiture order of 7 November 1997. It referred to the above request and noted that enforcement proceedings under the Extradition and Legal Assistance Act ( Auslieferungs- und Rechtshilfegesetz – “the ELAA”) were pending. The applicant appealed on 26 March 1998, submitting in particular that the Regional Court’s decision amounted to an unlawful interference with his right to property, as it lacked a legal basis. Moreover, an enforcement of the forfeiture order for the benefit of the <COUNTRY> was not admissible in <COUNTRY> as section 64(7) of the ELAA provided that any fines or forfeited assets obtained by executing a foreign decision fell to the Republic of <COUNTRY>. Further, the applicant claimed that the final forfeiture order also included “substitute assets”, e. assets not connected to or derived from criminal activity. Thus the measure requested did not correspond in any way to forfeiture ( Verfall ) or withdrawal of enrichment ( Abschöpfung der Bereicherung ) within the meaning of the Austrian Criminal Code ( Strafgesetzbuch ). In any event these penalties could not be applied in his case, as the relevant provisions had not been in force at the time he committed the offences. Furthermore, he had been convicted of money laundering in the <COUNTRY>, an offence which had not been punishable under Austrian law at the time of its commission. Relying on section 64(1) of the ELAA, the applicant also argued that the forfeiture proceedings had failed to comply with the requirements of Article 6 of the Convention, since the proceedings had not been public and he had not been heard. Moreover, his defence rights had been violated in the underlying criminal proceedings, his defence lawyer having been caught in a conflict of interests. Lastly, the applicant claimed that there was a lack of reciprocity as decisions of Austrian courts were not enforceable in the <COUNTRY>. Meanwhile, on 12 March 1998, the Vienna Regional Criminal Court had made a formal request to the <COUNTRY> authorities to hear the applicant in connection with the request for execution of the final forfeiture order. On 16 April 1998 the <COUNTRY> Department of Justice transmitted the applicant’s submissions to the Austrian Ministry of Justice. On 22 May 1998 the <COUNTRY> Department of Justice addressed a note to the Austrian Ministry of Justice concerning reciprocity in providing legal assistance in forfeiture proceedings. The applicant denies that this note contains assurances of reciprocity. On 1 August 1998 the Treaty between the Government of the Republic of <COUNTRY> and the Government of the <COUNTRY> of America on Mutual Legal Assistance in Criminal Matters (“the 1998 Treaty”) entered into force. On 12 October 1998 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal against the Regional Court’s decision of 12 March 1998. The Court of Appeal found that the Regional Court’s decision was based on Article 144a of the Code of Criminal Procedure ( Strafprozeßordnung ). In this connection, the court noted that pursuant to section 9(1) of the ELAA, the provisions of the Code of Criminal Procedure had to be applied mutatis mutandis unless explicitly provided otherwise. As to the applicant’s assertion that a forfeiture for the benefit of the <COUNTRY> would be contrary to section 64(7) of the ELAA, the court observed that the letters rogatory requested first and foremost that any measures required under Austrian law for the execution of the final forfeiture order be taken. Only as an additional point did they ask for the transfer of the assets, provided that this was admissible under Austrian law or any bilateral treaty. In this connection it referred to Article 17(3) of the 1998 Treaty. As regards the applicant’s assertion that the final forfeiture order covered substitute assets which could not be subject to forfeiture under Austrian law, the court observed that it followed from the judgment concerning the applicant’s conviction that he had led an organisation which had laundered large sums of money derived from drug dealing and had usually received a 10% commission for each amount laundered. Between 1 January 1990 and 2 April 1991 he had transferred more than USD 136 million of drug-related money from the account of a sham company to various foreign bank accounts. Thus, there were good reasons to assume that the applicant’s Austrian assets were monies received for or derived from the commission of a crime and subject to withdrawal of enrichment under Article 20 of the Criminal Code, or monies directly obtained through drug dealing, subject to forfeiture under Article 20b of the Criminal Code, in the version in force since its 1996 amendment. The final forfeiture order made a clear link between the offence of money laundering of which the applicant had been convicted and the forfeiture of all monies obtained thereby. Articles 20 and 20b in the version in force since the 1996 amendment of the Criminal Code were not regarded as penalties under Austrian law, but as measures sui generis . The fact that they had not been in force at the time of the commission of the offences was therefore not material. Even if one applied the law in force at the time of the commission of the offences, the requirements for withdrawal of enrichment were met. Article 20a(1) of the Criminal Code, in the version in force at that time, provided that an offender who had unjustly enriched himself could be ordered to pay an amount equivalent to the enrichment if the latter exceeded ATS 1 million. Although there had been no offence of money laundering under Austrian law at the time, the facts constituted the offence of receiving stolen property ( Hehlerei ) under Article 164(1)(4) of the Criminal Code, which made it an offence to assist the perpetrator of an offence (here, the drug dealers) in concealing assets derived from or received for the commission of the offence or to acquire such assets. As to the applicant’s allegation that both the criminal proceedings against him and the proceedings resulting in the final forfeiture order had failed to comply with Article 6 of the Convention, the court referred to the documents of those proceedings contained in its file and noted the following. In the criminal proceedings, the applicant had been present and had been represented by two counsel. It noted that it was the applicant who had insisted on being represented by counsel H. although the latter had voiced concerns, albeit without substantiating them, that he might himself be charged. In any case, the applicant had been represented by a second counsel, who was free from any potential conflict of interests. In the forfeiture proceedings he waived his right to a public hearing before a jury since they only concerned questions of law. On 26 March 1993 the judge had heard the case in the presence of the applicant’s counsel but without the applicant being present. The applicant’s lawyer had requested that the applicant be heard but had refused the court’s offer to hold a further hearing in the presence of the applicant before the delivery of the judgment. In sum, the Vienna Court of Appeal found no indication that the proceedings before the <COUNTRY> courts had failed to comply with Article 6 of the Convention. As regards the alleged lack of reciprocity, the court noted that when the request for enforcement of the final forfeiture order had been made, there had been no bilateral treaty between the <COUNTRY> and the Republic of <COUNTRY>. Thus, only the provisions of the ELAA had to be applied, section 3(1) of which required reciprocity. The Regional Court had duly investigated the issue in that it had required the <COUNTRY> Department of Justice to submit information as to the possibilities of enforcing an Austrian forfeiture order in the <COUNTRY>. Meanwhile, however, the 1998 Treaty had entered into force. Under Article 20(3) of that Treaty, it applied irrespective of whether the underlying offences were committed before or after its entry into force. Article 17 provided for mutual legal assistance in forfeiture proceedings. The enforcement of the final forfeiture order of 7 November 1997 On 25 August 1999 the <COUNTRY> central authority, relying on the 1998 Treaty, made a new request for enforcement of the final forfeiture order of 7 November 1997. According to the applicant, this second request for legal assistance was not served on him. The applicant made submissions on 22 December 1998, on 11 March 1999 and on 11 May 2000. On 14 June 2000 the Vienna Regional Criminal Court, without holding a hearing, decided to take over the enforcement of the final forfeiture order of 7 November 1997 and ordered the forfeiture of the applicant’s Austrian assets for the benefit of the <COUNTRY>. Having regard to the 1998 Treaty, the requirement of reciprocity was fulfilled. The submissions by the applicant which disputed this were no longer relevant as they referred to the legal position before the entry into force of the 1998 Treaty. As to the question of the beneficiary of the forfeiture, it noted that Article 17(3) of the 1998 Treaty provided optionally that each State party could hand over forfeited assets to the other party. Referring to the Court of Appeal’s decision of 12 October 1998, it noted that the applicant’s conduct had been punishable under Austrian law. Thus, the forfeiture was not contrary to Article 7 of the Convention. Finally, the court noted that the applicant had been given an opportunity to comment on the request for legal assistance. The applicant appealed on 7 July 2000. He asserted that the 1998 Treaty provided for legal assistance in pending criminal proceedings, but did not contain a legal basis for mutual execution of final decisions. Even assuming that the 1998 Treaty applied in the present case, the enforcement of the final forfeiture order would violate Article 7 of the Convention as the said Treaty had not been in force in 1997 when the forfeiture order was issued. Moreover, money laundering had not been punishable under Austrian law at the time of the commission of the offences. Consequently, his assets could not be subject to forfeiture or withdrawal of enrichment under Austrian law. Furthermore, the applicant repeated his argument that his Austrian assets were substitute assets and claimed that, at the time of the commission of the offences, such assets had not been subject to forfeiture or withdrawal of enrichment under Austrian law. Relying on expert opinions submitted by him, the applicant maintained that the condition of reciprocity required by section 3(1) of the ELAA was not fulfilled, as <COUNTRY> constitutional law did not permit the enforcement of decisions given by foreign criminal courts. He further submitted that the five-year limitation period for enforcement had started running on 30 August 1993, when the preliminary forfeiture order was issued (as it was, despite its name, a final and enforceable decision), and not only on 7 November 1997, when the final forfeiture order was issued. In addition the applicant alleged that the criminal proceedings and the forfeiture proceedings before the <COUNTRY> courts had not complied with the requirements of Article 6 of the Convention. He submitted the same arguments as in the proceedings relating to the preliminary confiscation of his assets. Moreover, he referred in general terms to the fact that the <COUNTRY> still applied the death penalty. The applicant also complained about a number of procedural shortcomings as regards the proceedings in <COUNTRY>. He alleged in particular that the Regional Court had refused to take into account the aforesaid expert opinions submitted by him, which showed that <COUNTRY> constitutional law excluded any enforcement of decisions of foreign criminal courts. Moreover, he had not been given sufficient opportunity to advance his arguments as, in his view, that would have required his personal presence in court. Finally, he complained that the Regional Court had failed to hold a public oral hearing and requested that such a hearing be held by the appellate court. The Public Prosecutor’s Office also appealed. Its appeal was served on the applicant for comments, which he submitted on 21 September 2000. On 7 October 2000 the Vienna Court of Appeal, sitting in camera , dismissed the applicant’s appeal. Upon the public prosecutor’s appeal, it amended the Regional Court’s decision and ordered the forfeiture to the benefit of the Republic of <COUNTRY>. The court noted at the outset that, pursuant to its Article 20(3), the 1998 Treaty applied irrespective of whether the underlying offences were committed before or after its entry into force. It dismissed the applicant’s argument that the said Treaty did not provide a basis for the mutual enforcement of decisions. Article 1, paragraphs (1) and (2)(h) of the Treaty, in conjunction with Article 17, governed legal assistance in forfeiture proceedings. As to the alleged lack of reciprocity, it was sufficient to refer to those provisions. It was therefore not necessary to examine questions of <COUNTRY> constitutional law. Moreover, referring to its decision of 12 October 1998, the court reiterated that the facts underlying the applicant’s conviction for money laundering would have been punishable as receiving stolen property under Article 164(1)(4) of the Criminal Code at the time of the commission of the offences. Further, it reiterated that withdrawal of enrichment pursuant to Article 20 of the Criminal Code and forfeiture pursuant to Article 20b, both in the version in force since 1996, were not regarded as penalties, but served the purpose of neutralising proceeds of criminal activities. These measures covered any proceeds of an offence, irrespective of whether they were directly derived from the offence or given for its commission or whether they had already been converted into other assets. With regard to the applicant’s complaint that the proceedings in the <COUNTRY> had not complied with the requirements of Article 6 of the Convention, the court referred to the reasons given in its previous decision of 12 October 1998. The court dismissed the applicant’s plea that the enforcement of the final forfeiture order was time-barred, noting that the <COUNTRY> Supreme Court, on 25 March 1996, had refused leave to appeal against the provisional forfeiture order, whereupon the final forfeiture order had been issued on 7 November 1997. Consequently, the five-year limitation period pursuant to section 59 of the Criminal Code had not expired. As to the applicant’s procedural rights, the court noted that he had been represented by counsel throughout the proceedings and had had the opportunity to submit extensive written pleadings. Finally, the court considered that the public prosecutor’s appeal was well-founded in that section 64(7) of the ELAA provided that forfeited assets fell to the Republic of <COUNTRY>. Thus, forfeiture to the benefit of the <COUNTRY> under Article 17(3) of the 1998 Treaty was not admissible. The decision was served on the applicant on 30 October 2000.

Austria, United States

5

In 1992 the Essen public prosecutor's office ( Staatsanwaltschaft ) started investigations against the applicant and a number of other people suspected of fraud. On 11 March 1993 the Essen District Court ( Amtsgericht ) issued a warrant for the arrest of the applicant and two other suspects, Ms S. and Ms , on suspicion of criminal association, drug trafficking and several counts of fraud. In its decision, the District Court noted that the suspects had been charged with having founded – towards the end of December 1988 – an association for the purpose of gaining large profits from fraudulent trading in options. Moreover, as from mid-1990 the suspects had agreed to import cocaine from Majorca to <COUNTRY> and to sell it there. Several accomplices had been recruited as members of the criminal organisation and had been involved in the numerous criminal offences. As regards the fraudulent trading in options, almost one thousand victims had been defrauded by the criminal association between the beginning of 1989 and March 1993, and they had lost a total of sixty million German marks. Moreover, between October 1990 and August 1992 approximately 100 kg of cocaine had been imported to and sold in <COUNTRY>. The District Court found that, having regard to the statements made by some witnesses and the defendants, the results of the telephone-tapping operations and other results of the investigations, there was a strong suspicion that the applicant, Ms S. and Ms had committed the criminal offences in question. The District Court also considered that there was a danger of absconding within the meaning of Article 112 § 2 of the Code of Criminal Procedure ( Strafprozeßordnung ). In this respect, the court found that, taking into account the seriousness of the offences with which the suspects were charged and the importance of the damage they had caused, they had to expect a long term of imprisonment. Moreover, the suspects obviously had sufficient financial means to abscond. According to the District Court, there was also a danger of collusion within the meaning of Article 112 § 3 of the Code of Criminal Procedure, since, as members of a criminal association, the suspects were accustomed to disguising the extent of their activities by having recourse to “men of straw” and fictitious contracts, and were therefore likely to suppress evidence or influence witnesses. The applicant was arrested on 19 March 1993. In the presence of his defence counsel, Mr Hütsch, he was informed by the detention judge ( Haftrichter ) of the charges against him and of the arrest warrant of 11 March 1993. The applicant did not make a statement. He requested an oral hearing on the lawfulness of his detention ( Haftprüfung ) but later withdrew his request. According to the applicant, his counsel applied as early as March 1993 to the Essen public prosecutor's office for leave to consult the investigation files, but his request was rejected on the ground that access to those documents would endanger the course of the investigations. However, neither the request nor its dismissal are recorded in the files of the public prosecutor's office. In the ensuing proceedings, counsel for the applicant was joined by a colleague, Mr Küpper-Fahrenberg. On 3 May 1993 the applicant, in the presence of defence counsel, was questioned by the police about the charges against him. He indicated that he had, in the meantime, repeatedly consulted his counsel. In the course of further interrogations on 5 and 6 May, and 13 and 20 July 1993, mostly in the presence of counsel, the applicant was questioned in detail about the charges against him, in particular about the contents of telephone calls which had been recorded by tapping under an order made in May 1992. On 8 September 1993 the Essen District Court amended the arrest warrant, adding in particular further charges of tax evasion, corruption, incitement to make a false entry in official records and making a false affidavit. The District Court confirmed that there was still a danger of the applicant and other suspects absconding and that less stringent measures could be taken only in the case of Ms S. Consequently the execution of the warrant for Ms S.'s arrest could be suspended, whereas the applicant and Ms had to be further remanded in custody. On 14 September 1993 the applicant was informed of the amended arrest warrant. His counsel then applied for access to the files. No action was taken on that request as the duplicate copy of the files had already been forwarded to the Düsseldorf Court of Appeal ( Oberlandesgericht ) for the purposes of the review proceedings, while the original files were needed for the purposes of the continuing investigations. On 14 September 1993 the Hamm public prosecutor's office ( Generalstaatsanwaltschaft ) requested the prolongation of the applicant's and Ms 's detention on remand. In this request, to which 24 investigation files were attached, the public prosecutor noted the history of the detention proceedings and summarised the offences of which the suspects were accused. As to the factual details, he referred to the arrest warrant and a police report of July 1993 which were to be found in the attached files. According to the public prosecutor, the strong suspicion against the suspects was based on the statements of the suspects and of witnesses, the opinion of a stockbroking expert, records of telephone tapping and seized business documents, which were all included in the investigation files. He also confirmed that there was a danger of absconding. In his reply of 21 October 1993, the applicant's defence counsel applied to the Düsseldorf Court of Appeal for access to the files, for an oral hearing on the question of the applicant's continued detention and for his release. He submitted that he could not comment in detail on the public prosecutor's submission as, despite repeated promises, he had not yet been granted access to the investigation files, and the public prosecutor's submissions were fragmentary and therefore did not provide a sufficient basis for him to rely on. According to a handwritten file note drafted by the Court of Appeal rapporteur, the applicant's counsel, in answer to a telephone query, had agreed to a decision on the question of the applicant's continued detention on remand being taken without him having been given access to the files beforehand. However, according to the applicant, as confirmed by his counsel, Mr Hütsch, and the latter's colleague, Mr Pott, the rapporteur and counsel had agreed that counsel could not comment on the question of the applicant's continued detention on remand without having had access to the files and that the Court of Appeal judge would therefore arrange for a consultation of the files. On 3 November 1993 the Düsseldorf Court of Appeal ordered the applicant's continued detention on remand. The Court of Appeal, having regard to the result of the investigations thus far, in particular the applicant's and the co-suspects' statements, the statements of the victims, the records of telephone tapping, seized business documents and the provisional opinion of a stockbroking expert, confirmed that there was a strong suspicion that the applicant had committed the offences in question. As regards the danger of the applicant's absconding, the Court of Appeal noted that he had substantial financial means and real property in Majorca. Moreover, until his arrest, he had had contacts in the <COUNTRY> of America, <COUNTRY> and <COUNTRY>. The Court of Appeal also considered that the applicant's continued detention on remand was not disproportionate. As to the conduct of the investigation proceedings, the Court of Appeal observed that the complex nature and the scope of the investigations had not yet enabled a judgment to be reached. In this connection, the Court of Appeal noted that the investigation files already comprised 24 volumes, the indictment being envisaged for November 1993. Finally, the Court of Appeal stated that there had been no need for an oral review hearing. On 22 November 1993 the Essen public prosecutor's office decided to allow the applicant's defence counsel to consult the investigation files. According to the applicant, only 22 of the then 24 files were made available. They were returned in January 1994. According to the applicant, his counsel applied for further consultation of the files at the beginning of 1994. On 7 February 1994, following changes in the jurisdiction of the courts, the Hamm public prosecutor's office requested the Hamm Court of Appeal to order the applicant's continued detention on remand. The public prosecutor's office enclosed the criminal files, which comprised 69 volumes and 3 subsidiary files ( Beiakten ). In his written submission of 28 February 1994, the applicant's counsel stated that he had thus far been able to consult only 22 volumes of the criminal files and that he could not, therefore, add anything to his previous observations. On 1 March 1994 the Hamm Court of Appeal granted the request of 7 February 1994 and ordered the applicant's continued detention on remand. The Court of Appeal considered that the reasons stated in the Düsseldorf Court of Appeal's previous decision remained valid. Moreover, the investigations had progressed. The police had prepared an intermediate report in January 1994 and indicated that the questioning of about one thousand witnesses had almost been completed. The final police report and the report of the tax-investigation authorities had been announced for the end of February 1994. The public prosecutor's office envisaged preparing the bill of indictment immediately afterwards. Thus the obligation to conduct the proceedings expeditiously had not been disregarded. The Court of Appeal further found that the applicant's complaint under Article 5 § 4 of the Convention about the lack of access to the investigation files did not affect the validity of the arrest warrant. On 25 March 1994 the applicant lodged a constitutional complaint ( Verfassungsbeschwerde ) about the decisions of 3 November 1993 and 1 March 1994, complaining in particular about the lack of sufficient access to the investigation files. In this respect, he stressed that he had been granted access to only 22 volumes of the investigation files which, at that time, comprised 132 volumes altogether. He and his defence counsel had not, therefore, been able to comment properly on the accusation against him and to exercise the defence rights effectively. On 2 May 1994 the Federal Constitutional Court ( Bundesverfassungsgericht ) decided not to entertain the applicant's complaint. On 25 March 1994 the Essen public prosecutor's office drew up the bill of indictment ( Anklageschrift ) against the applicant and four co-accused, who were charged with various criminal offences. As far as the applicant was concerned, the bill of indictment mentioned 91 counts of fraud, corruption, incitement to make a false entry in an official record and swearing a false affidavit. The proceedings relating to the charges of tax evasion were severed from these main proceedings. Prosecution for unlawful association was discontinued in view of the seriousness of the other charges. The bill of indictment, which set out in detail the charges against the applicant, the relevant facts and the evidence, was served on the applicant's counsel on 9 June 1994. On 9 June 1994 the Essen public prosecutor's office forwarded copies of the investigation files, namely 132 main and 2 supplementary volumes (about 16,000 pages altogether) to the applicant's defence counsel for consultation. It requested that they be returned within one week to allow consultation by the other defence counsel. On 23 June 1994 the office sent a reminder regarding the return of the files. The date of their return was not recorded. According to the applicant, the copies made available to his counsel were not complete. On 30 June 1994 the Hamm Court of Appeal ordered the applicant's continued detention on remand. Upon request by counsel of one of the applicant's co-accused, the decision had to be adjourned for one week in order to allow an adequate opportunity for submissions to be filed. The Court of Appeal confirmed the findings as laid down in the earlier decisions of 3 November 1993 and 1 March 1994. As regards the charges against the applicant, the Court of Appeal noted the changes resulting from the bill of indictment, which did not include the charges of founding a criminal association and of tax evasion. The prosecution regarding the first of these charges had been discontinued in accordance with the relevant provisions of the Code of Criminal Procedure, in view of the minor importance of the offence as compared to those set out in the bill of indictment. As regards the tax-evasion offence, further investigations were pending. The Court of Appeal also considered that the investigations had progressed. The bill of indictment had meanwhile been drawn up and forwarded to the Economic Offences Division at the Essen Regional Court ( Landgericht ). The Regional Court had started examining the complex case and envisaged, if the main trial proceedings were to begin, starting the hearings in September 1994. On 19 October 1994 the Hamm Court of Appeal ordered the applicant's release. The Court of Appeal confirmed that there was still a strong case against the applicant and that the reasons for detaining him on remand remained; however, his continued detention had ceased to be proportionate. The Court of Appeal considered, in particular, that since May 1994 the Essen Regional Court had not made progress in the proceedings. The applicant was released from detention the same day. On 15 December 1998 the Essen Regional Court found the applicant guilty of fraud, bribery and swearing a false affidavit and sentenced him to an aggregate term of five years and six months' imprisonment.

Germany, Spain, Switzerland, United States

6

A. Criminal proceedings against the applicant On 22 December 1999 the Sverdlovskiy District Court of the Irkutsk Region convicted the applicant of theft and sentenced him to five years’ imprisonment. On 11 April 2000 the Irkutsk Regional Court upheld the judgment. 7 . On 7 June 2001 the applicant asked the President of the Regional Court to apply for supervisory review of the above judgments on a number of legal grounds. After leave had been granted, on 2 July 2001 the Presidium of the Regional Court upheld the conviction but reduced the applicant’s sentence to four years and six months because of an error in the calculation of the term. The applicant was not brought to the hearing. 8 . The applicant made further attempts to obtain a review of his conviction and sentence. Apparently in reply to one of those applications, by a letter of 18 November 2002 the Irkutsk Regional Prosecutor’s Office notified the applicant that they had applied for supervisory review of the judgments of 22 December 1999 and 11 April 2000. It appears that the scope of the application for review was limited to an argument that the trial court had erred in determining the prison regime to be applied to the applicant without having regard to the cancellation of his conviction in 1992 for another offence. The applicant received that letter on 22 November 2002. 9 . It appears that on 6 December 2002 the applicant submitted his observations in relation to that request. However, in the meantime, on 2 December 2002 the Presidium of the Regional Court had already examined the supervisory review application and found that the 1992 conviction had been cancelled in 1997 and should not have been taken into consideration when the trial court decided whether there had been a repeated commission of a criminal offence (recidivism). It concluded that the applicant’s acts had constituted dangerous rather than “particularly” dangerous recidivism, and changed the type of the correctional facility in which the applicant was to serve his sentence. The Presidium upheld the judgments of 22 December 1999 and 7 June 2001 in the remaining part. The applicant was not brought to that hearing. On 30 December 2002 he was told that the review had taken place, but a copy of the decision was not given to him. B. Alleged ill-treatment The applicant served his sentence in correctional colony no. UK-272/25 situated in the village of Vikhorevka in the Irkutsk Region. The applicant’s account According to the applicant, on 7 September 2001 the colony administration informed the detainees that a special-purpose squad would be brought to the colony “to discipline detainees”. On 21 September 2001 five officers of the special-purpose squad arrived at the colony in order to “render practical assistance in carrying out searches and prophylactic measures”. On the same day the wardens and the officers of the squad searched the applicant’s cell. The applicant objected to the search and the officers intimidated him, beat him up and damaged his personal belongings. The applicant received no medical assistance and the colony doctor refused to record his injuries. The colony administration subsequently refused to dispatch his complaints to the prosecutor. The Government’s account According to the Government, the Director of the Regional Department for Execution of Sentences of the Ministry of Justice ordered a series of searches in detention facilities with a view to seizing unauthorised items kept by detainees in their cells which could be used for an escape. Searches were carried out in the applicant’s cell on 10 and 21 September 2001. According to a report dated 10 September 2001, the use of force was accounted for by the applicant’s insults to officers. A report drawn up on 21 September 2001 indicated that the applicant had uttered insults and threats of reprisals. The Government submitted copies of reports by two officers to their superior, stating that during the search on 21 September 2001 the applicant had uttered insults and threats of reprisals to the officers. Another officer stated that the applicant had objected to the search and had swung his hands; because of his refusal to stop after a warning, his hand had been held behind his back, he “had been held in a posture preventing resistance” and had been placed in a separate room pending the search in his cell. A report drawn up by the colony medical assistant indicated that no injuries had been detected on the applicant’s body. Investigation into the events of 10 and 21 September 2001 Several detainees complained to the Bratsk Prosecutor’s Office, in charge of supervising penitentiary institutions, about the events of 10 and 21 September 2001. They alleged that they and certain other detainees, including the applicant, had been beaten up by the squad members, with the tacit agreement of the colony administration. 16 . On 21 January 2002 the Bratsk Penitentiary Supervising Prosecutor’s Office refused to initiate criminal proceedings against the squad members. The assistant prosecutor indicated that the squad intervention had been duly authorised by the Regional Department for Execution of Sentences on 6 and 13 September 2001 (decrees nos. 385 and 398). The squad officers wore camouflage with their ID numbers and balaclava masks. On 10 September 2001 during the search of his cell the applicant had refused to comply with orders (to stay in the corridor against the wall), and had threatened the officers with reprisals, insulting them and pushing them away. Therefore, on an order from the colony chief officer the applicant was immobilised. During another cell search on 21 September 2001 the applicant behaved in the same way and also incited other detainees to riot. In order to put a stop to his actions he was immobilised. Special means and weapons were not used. The assistant prosecutor interrogated the complainants and other detainees, some of whom however had stated that special means or weapons had been used against detainees. On 28 February 2002, on a complaint by the applicant, an official of the Irkutsk Regional Department for Execution of Sentences informed him as follows. On 21 September 2001 five officers of the special-purpose squad had arrived in the colony. The applicant prevented the wardens from carrying out searches and assaulted them verbally and physically. Following the searches, the doctor visited the detainees to find out if they had sustained any injuries. The detainees did not make any complaints or requests.

He was convicted of offences of sexual activity with a child and breach of a Sexual Offences Prevention Order. In May 2007 he received an indeterminate sentence for public protection (“IPP sentence”). A minimum term (“tariff”) of eighteen months was fixed. 7 . He was initially detained at HMP Preston and was transferred to HMP Albany in October 2007. Between December 2007 and April 2008 he incurred seven adjudications for failure to obey or comply with orders and regulations and one adjudication for destroying property. He also underwent assessment of his suitability for a sex offender treatment programme. 8 . On 11 January 2008 the applicant was informed of his suitability for the adapted Sex Offender Treatment Programme (“adapted SOTP”). As this was not offered at HMP Albany it was recommended that he transfer to a suitable establishment. On 3 February 2008 the applicant wrote to the National Probation Service (“NPS”) seeking a transfer to another prison to undertake the adapted SOTP. By letter dated 8 February 2008 the NPS Service replied: “I have today spoken to your offender supervisor... I have asked him to try and speed up a transfer for you so that you can at least undertake the adapted SOTP, which you should be suitable for. He says that the only CAT B prison that does this is HMP Hull, but he will try and get you transferred there to do it if possible.” The applicant subsequently complained to HMP Albany on various dates about the failure to transfer him. He was informed that a suitable establishment was being sought. 11 . On 5 June 2008 the applicant completed the Enhanced Thinking Skills (“ETS”) course. 12 . In around November 2008 the applicant’s tariff expired. 13 . In February 2009 a Parole Board Review took place. The Parole Board decided on the papers that the applicant should remain in detention. The Board noted that the applicant had completed the ETS course and would be assessed for, and if found suitable, complete a sex offenders treatment programme. 14 . Subsequent correspondence with the Ministry of Justice refers to long prison waiting lists for access to the adapted SOTP and delays in processing applications for prison transfer. By letter dated 3 September 2009 the Secretary of State informed the applicant that he agreed with the Parole Board February 2009 recommendation. He indicated that the applicant was to be assessed for and complete the adapted SOTP. A provisional hearing before the Parole Board was fixed for March 2011. 16 . Meanwhile, the applicant was again assessed for suitability for a sex offenders treatment programme. By letter dated 23 October 2009 he was informed that he would be most likely to benefit from the Becoming New Me course (“SOTP BNM”), the replacement for the adapted SOTP. 17 . On 24 November 2010 the applicant was transferred to HMP Bure. On 23 December 2010 a Parole Board review took place. 19 . On 4 January 2011 the Parole Board notified the applicant of its decision not to direct his release or to recommend his transfer to open conditions. It observed that since his last review the applicant had undertaken training courses in assertiveness skills, understanding the cause of conflict/domestic violence, understanding the boundaries of respectability in relation to children, alcohol awareness and unlocking financial capability. It noted the positive change in his attitude but considered that his risk remained high. It confirmed that he would be required to complete the adapted SOTP prior to release. It concluded: “[We] shared your concern at the fact you have so far been unsuccessful in your attempts to secure a referral to the courses identified as targets on your sentence plan and that furthermore you have recently been moved to a prison that does not run these programmes. However, prisoner location is an operational matter which sits outside of the Parole Board’s remit and is for the prison service and your offender manager to resolve. What does this mean however, is that you remain an untreated sex offender who is unable to demonstrate that the risk you pose has reduced sufficiently to be manageable in the community.” 20 . By letter dated 28 March 2011, the Secretary of State agreed with the Parole Board’s recommendation. He referred to the need to complete the SOTP BNM. The applicant’s review period was set at eighteen months consisting of: “ Three months transfer and settling in period in a new establishment  Three months assessment for the Becoming New Me programme  Six months to complete the Becoming New programme  Six months to complete the post Becoming New Me programme report (SARN).” The next parole review was therefore scheduled to commence in January 2012 with the target date for the oral hearing being July 2012. 22 . On 8 July 2011 the applicant was transferred to HMP Wymott on his own request on compassionate grounds to be closer to his father, who was unwell. He subsequently asked to remain at HMP Wymott and to be given a place on the SOTP BNM course scheduled to commence in September 2011. As that course was already full, the applicant was informed that he could, if he wished, await the next course to be delivered at HMP Wymott in August/September 2012, for which he would be a priority. On 7 September 2011 the applicant’s representatives wrote to the Governor of HMP Bure and HMP Wymott notifying them that judicial review proceedings were being contemplated against them and the Secretary of State. They sought confirmation that the SOTP BNM course would be made available to the applicant. 24 . By letter dated 1 November 2011 HMP Wymott replied in the following terms: “I acknowledge that your client’s initial transfer to HMP Wymott was on compassionate grounds ... The fact that Mr Taylor elected not to return to HMP Bure is a factor that must be considered when determining whether or not his progress through the prison service has been slow ... Although, I would argue that the prompt intervention of his newly appointed Offender Supervisor and the attempts he made to source a suitable course at HMP Wymott would indicate that HMP Wymott were not at fault for any delays to your client’s progress. Your client is known to our Programmes team, is in the assessment process and his post tariff status will ensure that he is prioritised accordingly for the next BNM courses which should be delivered from approximately August/September 2012.” 25 . The prison offered to facilitate a transfer to another prison where the applicant might be able to access the SOTP BNM more speedily. He chose to remain at HMP Wymott to await a place on the SOTP BNM there. On 25 April 2012 a Parole Board review took place on the papers. The Board decided not to direct the applicant’s release or recommend his transfer to open conditions. It concluded: “You committed serious index offending, which targeted a vulnerable victim ... The panel was also concerned that, at a young age, you already had a conviction record that included previous violent and sexual offending against vulnerable female victims. It is to your credit that you have some understanding of the risk you pose, and that you are motivated to undertake work to address your sexual offending behaviour. However, you have yet to undertake this work. The panel is also concerned that you have a history of breaching trust and reoffending despite measures being put in place to contain your risk ...” By letter dated 5 July 2012 the Secretary of State indicated that he agreed with the Parole Board recommendation. He confirmed the SOTP BNM as an appropriate course to reduce the applicant’s risk of reoffending. The next review was scheduled to commence in April 2013 and to be concluded by December 2013. 28 . The applicant commenced the SOTP BNM as planned on 23 August 2012 and completed it on 2 February 2013. A further Parole Board review took place on 26 February 2014. The Board decided not to direct the applicant’s release, but recommended his transfer to open conditions.

6

A. First set of proceedings Criminal proceedings against the applicant concerning charges of leading an organised criminal gang, assault and extortion have been pending since 29 September 2005 (case no. IV K 59/09, Łódź Regional Court). B. Second set of proceedings The criminal proceedings 6 . On 1 October 2009 the applicant was arrested and detained on remand. 7 . On 2 March 2010 the applicant was indicted before the Łódź Regional Court. The bill of indictment was directed against the applicant and twenty ‑ two co-accused charged with over 900 offences in total. The applicant was charged on thirty-eight counts with respect to various offences related to stealing cars, dealing in drugs, assaults and burglaries, in the context of an organised criminal gang. 8 . At a session on 23 November 2010 the trial court decided to sever the remainder of the case from the proceedings against the applicant, which would be dealt with at a separate trial and joined with other charges brought against him. In consequence, the proceedings against the applicant were to be transferred to another division of the Łódź Regional Court. The decision pertaining to the competence of the court was quashed on 14 December 2010. On 28 December 2010 the trial court extended the applicant’s detention on remand. On 4 February 2011 the proceedings were stayed pending the outcome of another trial, but that decision was quashed upon appeal on 16 March 2011. The case was transferred to the relevant division of the court in March 2011, and thereafter the presiding judge scheduled the beginning of the trial for 14 September 2011 and undertook other preparative actions (such as tracing the addresses of some twelve witnesses). During the proceedings the applicant lodged multiple procedural requests which were examined by the trial court. In particular, he asked for adjournments of hearings, asked for new evidence to be admitted, and challenged a judge and a prosecutor. 9 . The Łódź Regional Court held about twenty-four hearings in total and on 13 May 2013 convicted the applicant and sentenced him to nine years’ imprisonment. The applicant appealed against the judgment. 11 . A hearing of the appellate court scheduled for 15 April 2014 was cancelled due to the absence of the applicant’s lawyer. On 12 June 2014 the Łódź Court of Appeal allowed the applicant’s appeal in part and reduced his sentence to eight years’ imprisonment. The applicant lodged a cassation appeal. On 17 December 2014 the Supreme Court dismissed the cassation appeal. Proceedings under the 2004 Act The applicant lodged two complaints under the Law of 17 June 2004 on complaints of breaches of the right to have a case examined in an investigation conducted or supervised by a prosecutor, and in judicial proceedings, without undue delay ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki - “the 2004 Act”). On 7 September 2011 the Łódź Court of Appeal dismissed the first complaint. The court, relying on the Convention principles, ruled that, taking into account the complexity of the case, the length of the proceedings had not been excessive. During the period under consideration the trial court had prepared diligently for trial by, for instance, securing the presence of a large number of witnesses who had been summoned from various detention facilities. On 28 November 2012 the Łódź Court of Appeal dismissed the applicant’s second complaint. The court examined the course of the proceedings and ruled that there had been no delays on the part of the courts. It noted that the trial court had taken many procedural decisions requested by the parties, including the applicant.

6

A. First set of minor-offence proceedings against the applicant On 29 February 2012 Buzet police station ( Policijska uprava istarska, Policijska postaja Buzet ) issued a penalty notice, having found the applicant guilty of two minor road traffic offences: not stopping his vehicle in order to let a pedestrian cross at a pedestrian crossing, and not wearing a seat belt, offences proscribed by sections 134(4) and 163(8) of the of the Road Traffic Safety Act ( Zakon o sigurnosti prometa na cestama , Official Gazette nos. 67/2008 and 74/2011, see paragraph 20 below). The applicant challenged that penalty notice before the Pazin Minor Offences Court ( Prekršajni sud u Pazinu, Stalna Služba u Buzetu ). The case was assigned to Judge B.On 13 June 2012 Judge B.issued a decision setting aside the penalty notice and ordering that summary minor-offence proceedings be conducted. On the same day Judge B.summoned the applicant to a hearing scheduled for 6 July 2012. The summons, which contained a warning that the hearing could be held in the defendant’s absence in the event that his questioning was not necessary and relevant for lawfully and correctly deciding the case, was served on the applicant on 20 June 2012. According to the applicant, on 28 June 2012 his lawyer, , sent a fax to the Pazin Minor Offences Court, asking the president of that court to disqualify Judge B.from dealing with the case. The application stated that Judge B.had worked with the applicant’s mother, who was also a judge, and in order to remove any doubt as to Judge B.’s impartiality, he should be removed from the case. According to the Government, such a fax was never received by the Pazin Minor Offences Court. The domestic case file does not contain any application by the applicant to disqualify Judge B.from dealing with the case. Although duly summoned, neither the applicant nor his lawyer appeared before the Pazin Minor Offences Court on 6 July 2012. The competent prosecutor in the case did not appear either. Judge B.decided to hold the hearing in the absence of the parties. He found that the applicant’s questioning was not relevant for correctly establishing the facts of the case. He then examined a written report from the police officer who had directly observed the applicant committing the minor road traffic offences. On the same day, concluding that there were no reasons to doubt the police officer’s written report, Judge B.found the applicant guilty of the charges listed in the penalty notice of 29 February 2012. He fined him 1,000 Croatian kunas (HRK – approximately 130 euros (EUR)) and ordered a term of imprisonment in default of payment. As there was no possibility for the applicant to appeal to a higher court in the summary minor-offence proceedings, he lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ). He submitted that Judge B.had decided his case even though he had asked for the judge to be disqualified. He further submitted that he had also asked for Judge B.’s removal in another set of minor-offence proceedings before the same court, and on that occasion the judge had accepted to recuse himself, citing animosity between himself and the applicant’s mother (see paragraph 18 below). Pursuant to section 104(3) of the Minor Offences Act ( Prekršajni zakon , Official Gazette no. 107/2007, see paragraph 21 below), Judge B.should therefore have immediately informed the president of the court that there were circumstances justifying his recusal. As Judge B.had failed to do so, the applicant had not been tried by an impartial court. On 17 October 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. That decision was served on the applicant on 9 November 2012. Upon request of the Government Agent, on 22 October 2015 the Registry of the Constitutional Court confirmed that the Pazin Minor Offences Court’s case file did not contain the applicant’s application for Judge B.to be disqualified from dealing with the case. B. Second set of minor-offence proceedings against the applicant On 6 June 2012, in another set of minor-offence proceedings against the applicant before the Pazin Minor Offences Court, the applicant requested, through his lawyer, , that Judge B.be disqualified from dealing with the case. In his application, he stated that Judge B.had worked with his mother, who was also a judge, and in order to remove any doubt as to Judge B.’s impartiality, he should be removed from the case. After learning of the application for his disqualification, Judge B.discontinued all activity on the case and proposed that the application be accepted. In a statement to the President of the Pazin Minor Offences Court, he said that he had been in continuous conflict with the applicant’s mother, who had been president of the court where he had worked, and that they did not communicate with each other. On 14 June 2012 the President of the Pazin Minor Offences Court disqualified Judge B.from dealing with the case, finding that there were circumstances which called his impartiality into doubt. That decision was served on the applicant on 23 June 2012.

A. The background of the case The Region of Carinthia ( Land Kärnten ) is the majority shareholder of the Carinthian Electricity Corporation (Kärntner Elektrizitäts-Aktiengesellschaft - “ the KELAG”). On 16 June 1999 the KELAG invited all shareholders to the general meeting on 9 July 1999. One item on the agenda was the dismissal and re-election of the corporation's supervisory board ( Aufsichtsrat ). For the meeting of the Carinthian Regional Government ( Landesregierung ) of 6 July 1999, Mr Pfeifenberger, the official dealing with financial matters at the material time, prepared a motion inviting the Regional Government to nominate specific persons to the corporation's supervisory board. He retracted this motion before the meeting as, at the request of Mr Haider, Regional Governor ( Landeshauptmann ) of Carinthia, he had received a legal expert opinion issued by the expert Mr Q. According to this opinion, the Region of Carinthia had no right to nominate the members of the KELAG supervisory board as the members had to be elected. The representative of the Region of Carinthia could propose candidates and exercise the voting right in the general meeting of the KELAG without a prior decision by the Regional Government. Mr Haider had further informed Mr Pfeifenberger that the Legal Department dealing with constitutional matters at the Carinthian Regional Government Office had approved this way of proceeding. Mr Haider further commissioned an expert opinion by the Legal Department. This opinion, issued on 2 August 1999, stated that an interpretation of the relevant provisions did not lead to an unequivocal result. In the meantime, Mr Pfeifenberger – despite the protest of the socialist members of the Regional Government – gave authority to Mr Haider to represent the Region of Carinthia in the general meeting of the KELAG. Mr Haider subsequently represented the Region of Carinthia at the said general meeting on 9 July 1999 and exercised the voting right without having previously obtained a decision by the Regional Government. On 14 July 1999, at the request of the Austrian Social Democratic Party (“the SPÖ”) Mr S, a professor of law of the Graz University, issued a further expert opinion of some seven pages concerning the question of “nomination of members to the KELAG's supervisory board by the Regional Governor of Carinthia”. This expert opinion came to the conclusion that the election of the supervisory board of the KELAG by the Regional Governor without a previous decision by the Regional Government was not in accordance with federal constitutional law, regional constitutional law and the Regional Government's Rules of Procedure. The opinion finally mentioned the possibility of impeachment of members of the Regional Government before the Constitutional Court by majority vote of the Regional Parliament ( Landtag ) under Article 142 of the Federal Constitution ( Bundes-Verfassungsgesetz ) for having culpably breached the law. The Constitutional Court's decision in impeachment proceedings consisted of either the exoneration of the official in question or a finding against him or her which implied dismissal of the person from office. The possibility for the Constitutional Court to limit its judgment in the event of minor infringements to a finding that there has been a breach of the law would not exist in the present case as impeachment had to be filed under Article 142 § 2 lit d which did not provide for this alternative. B. The article at issue On 16 July 1999 the applicant company published an article on its front page of “Der Standard” which read as follows: “Haider has breached the Constitution According to an expert opinion commissioned by the SPÖ at the Graz University, the Regional Governor Jörg Haider has committed a 'breach of law' when appointing the supervisory board of the KELAG. His handling of the Regional Government's Rules of Procedure would be 'illicit, illegal and unconstitutional'. The ÖVP [Austrian People's Party] nevertheless does not want to support an impeachment. It invites Haider to correct the KELAG decisions concerning the personnel, which the FPÖ [Austrian Freedom Party] categorical refuses: 'We refuse to be blackmailed'.” The article continued on page 8 under the same heading with the subtitle: “ Expert opinion of professor in Graz accuses the Regional Governor of deliberate misguidance ”. It stated as follows: “The Carinthian Regional Governor, Jörg Haider, by acting on his own when appointing the members of the KELAG supervisory board, has clearly committed a 'breach of the laws and the Constitution'. This is the conclusion reached by A.S [name in full], professor at the Graz University, in his expert opinion on constitutional matters which had been commissioned by the Carinthian SPÖ. Haider, by acting on his own authority, has violated the Carinthian Government's Rules of Procedure and has, thus, breached the law and the Constitution. The expert opinion mentions as an aggravating factor that Haider has 'deliberately mislead the Regional Government and ignored the Regional Constitution and the Regional Government's Rules of Procedure'. According to the expert opinion it is therefore possible to institute impeachment proceedings against Haider. If the Constitutional Court convicted Haider, he would be threatened with dismissal from office. The SPÖ leader Helmut Manzenreiter has now given Mr Haider an ultimatum: either the supervisory board should be appointed afresh by the Regional Government as a whole or there should be a tripartite agreement on transforming Kelag into a holding company. Otherwise, the SPÖ would institute impeachment proceedings against Mr Haider before the elections to the National Assembly. Mr Manzenreiter also called on the ÖVP not to 'cover up' Mr Haider's breach of the law. In the Regional Parliament the FPÖ reacted vehemently to the report. The leader of the FPÖ's parliamentary group, Martin Strutz, announced that a second opinion would be commissioned. Mr Haider himself could not hide his anxiety. He leaned back in a relaxed fashion only when the leader of the ÖVP's parliamentary group, Klaus Wutte, made clear that the ÖVP would not support his impeachment. Although the ÖVP intends to await the findings of an 'independent' expert opinion, Mr Wutte nonetheless hinted at the party's strategy: 'Not punishment but rectification of Haider's breach of the law.' In so doing, he both foiled his colleague Georg Wurmitzer and confirmed the viewpoint that there is a 'tacit coalition' between the ÖVP and the FPÖ.' The article was followed by a further text in a small box headed “[The] Constitution stands above stock corporation law” ( Verfassung steht über Aktienrecht ). This text explained that Mr Pfeifenberger had prepared an act of Government ( Regierungsakt ) which Mr Haider had, however, retracted as being an “error”. The expert opinion had found that this conduct amounted to deliberate misguidance of the Regional Government. The article further stated that the expert A.S. did not accept Mr Haider's reference to stock corporation law. Proceedings under the Media Act On 29 July 1999 Mr Haider instituted proceedings for forfeiture ( Einziehung ) of the article and publication of the judgment under Section 33 of the Media Act ( Mediengesetz ) with the St. Pölten Regional Court ( Landesgericht ). On 12 December 2000 the Regional Court found that the article at issue, by stating that Mr Haider had deliberately mislead the Regional Government and had acted in breach of the Carinthian Government's Rule of Procedure and the Regional Constitution, fulfilled the elements of the offence of defamation ( üble Nachrede ) under Article 111 of the Criminal Code ( Strafgesetzbuch ). It, therefore, ordered the applicant company to black out the impugned statements in the issues still to be disseminated and the publication of the judgment under sections 33 and 34 of the Media Act. It further ordered the applicant company to pay the costs of Mr Haider's counsel. At the trial the court heard the counsel of the applicant company, Mr Haider and Mr Pfeifenberger. It dismissed the applicant company's request to hear all other members of the Regional Government as being irrelevant for the proceedings at issue. The court considered the statements that Mr Haider had breached the Constitution, had deliberately mislead the Regional Government and had acted in breach of the law as statements of fact for which the applicant company had failed to supply sufficient proof. The court noted that there was, in particular, nothing to indicate that Mr Haider had deliberately misled the Regional Government which, in itself, was a sufficient reason for the ordered forfeiture. The fact whether or not Mr Haider had acted in breach of the Constitution was a matter which had to be decided by the Constitutional Court. The applicant company appealed against this judgment. It submitted inter alia that the statements at issue were value judgments, based on the facts established by the expert opinion of the professor of the Graz University, and contributed to the discussion of a question of public interest. On 3 December 2001 the Vienna Court of Appeal ( Oberlandesgericht ), having the expert opinion of Mr S. before it as evidence, dismissed the applicant's appeal. It noted that the expert opinion had to be considered as an admissible legal assessment of uncontested facts. The article at issue had, however, not simply reproduced the opinion given by the expert but had used it for an independent attack on Mr Haider's reputation. The court noted in this regard that the article had not placed the expert opinion in its context, namely that of a legal dispute, but had presented it as an irrevocable verdict on Mr Haider. The court referred in particular to the wording of the article's headings. It further noted that the article had not published any comment of Mr Haider and had not mentioned the existence of the opinion issued by the other expert Q. Furthermore, the article contained statements which were not supported by the expert opinion, namely that Mr Haider had deliberately misled the Regional Government and the reference to the possible impeachment of Mr Haider. The court noted in the latter regard that the expert opinion had merely mentioned the abstract possibility of impeachment of a member of the Regional Government who, in the opinion of the majority of the members of the Regional Parliament, had culpably breached the law. The court finally noted that the Regional Court's order to black out the impugned statements did not replace but complemented an order of forfeiture of the relevant issues. This judgment was served on the applicant company's counsel on 21 January 2002. Proceedings under the Civil Code On 4 December 2001 Mr Haider brought injunction proceedings under Article 1330 of the Civil Code ( Bürgerliches Gesetzbuch ) against the applicant company. On 19 June 2002 the Vienna Commercial Court ( Handelsgericht ), referring to the judgments of the courts in the proceedings under the Media Act, granted the injunction and ordered the applicant to revoke the statements that Mr Haider, by appointing the members of the KELAG supervisory board, had deliberately misled the Regional Government and had acted in breach of the Regional Government's rules of procedure and the Regional Constitution. It further ordered the applicant company to pay the costs of Mr Haider's counsel. The court dismissed the applicant company's argument that it could not be held responsible for the shortcomings of the article at issue since that article had been written by a journalist who was not trained in law. The journalist had relied on press releases prepared by the Socialist Party which summarised the expert opinion incorrectly. The court found that the applicant company had not complied with its obligation of journalistic diligence as it had failed to consult the available expert opinion. On 20 November 2002 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant company's appeal. This decision was served on the applicant company's counsel on 4 December 2002.

On 12 April 2006, the applicant concluded a sales contract ( купопродажен договор ) with a Sh.A., for the purchase of a concrete mixing and transport lorry (“the vehicle”) for the equivalent of 5,000 euros (EUR) in Macedonian denars (MKD). On 15 May 2007 the applicant lent the vehicle to his company. On 6 October 2008 the Ministry of the Interior temporarily seized the vehicle and its registration certificate ( сообраќајна дозвола ) from the applicant in order to examine the vehicle’s chassis ( проверка на шасија ). A record of temporarily seized objects ( потврда за привремено одземени предмети ) was issued. On 1 February 2010 the Struga Court of First Instance (“the first-instance court”) acquitted Sh.A. of charges of forgery of a document ( “фалсификување исправа“ ) concerning the vehicle’s chassis number and rejected an indictment brought by a public prosecutor against a certain S. The court found that during the trial it had not been established that Sh.A. had altered the vehicle’s chassis. In accordance with section 102(3) of the Criminal Proceedings Act (see paragraph 18 below), the court further advised the applicant, who had claimed compensation in the criminal proceedings, to pursue the claim by means of a separate civil action before the civil courts. On 21 July 2010 the judgment became final. On 16 November 2010 the applicant requested that the first-instance court return the vehicle in his possession. On 3 December 2010 the first-instance court heard evidence from the applicant, who stated that he had bought the vehicle from Sh.A. for EUR 25,000. He further stated that he could not have been aware at the time that the chassis number of the vehicle had been forged. On 6 December 2010 the first-instance court, relying on Article 100 ‑ a (3) of the Criminal Code (“the Code”, see paragraph 17 below), found that there were no grounds for confiscation of the applicant’s vehicle. The applicant had not known nor could he have known that the vehicle had been used to commit a crime. The court also ordered that the registration certificate be returned to the applicant. Upon the public prosecutor’s appeal, on 24 January 2011 the Bitola Court of Appeal (“the appellate court”) quashed that decision. Relying on Article 100-a (2) of the Code, the appellate court found that the vehicle’s chassis had been forged and that the vehicle, in the interest of public safety, could not be declared roadworthy. It further referred to section 100-a (3) of the Code and instructed the first-instance court to assess whether the continued use of the vehicle would constitute a “use of a forged document” offence under the Code ( употреба на фалсификувана јавна исправа , see paragraph 17 below). On 22 February 2011 the first-instance court dismissed the applicant’s application and ordered the confiscation ( се одземаат ) of the vehicle and its registration certificate. It referred to Article 100-a (2) and (3) of the Code and found that the vehicle’s chassis number had been forged and that the vehicle could be used for committing an offence. For that reason and for the reasons of road safety, it was necessary to confiscate the vehicle and the registration certificate. It also referred to section 532(1) of the Criminal Proceedings Act (see paragraph 18 below) and found that, irrespective of the fact that there had been no proceedings against the applicant and that he was not an offender, it was necessary to confiscate the vehicle for general safety reasons. On 11 March 2011 the applicant appealed arguing that the first-instance court had wrongly applied Article 100-a (2) and (3) of the Code and that he had not known that the vehicle had been used to commit a crime. On 19 May 2011 the appellate court dismissed the appeal and upheld the first-instance court’s decision. The relevant part of the decision states as follows: “[The arguments] raised in the appeals, [namely] that the first-instance court had not established the decisive facts concerning [the certitude] that the [applicant] had not known that the vehicle’s chassis had been forged, which was decisive, are groundless. Specifically, it is true that [the applicant] did not know that the vehicle’s chassis had been forged, as a result of which [he] registered the vehicle as its last buyer, [he was] issued a driving licence and [he] paid a large amount. However, [what is] primary under Article 100-a (2) of the [Criminal Code] is that the objects which were intended to [commit] an offence or were used to commit an offence shall be confiscated notwithstanding that they are not in the ownership of the offender or that they are in the ownership of a third person, if general safety, public health or ethics require so ... The fact that [the applicant] did not know that the vehicle’s chassis had been forged does not signify that the conditions of Article 100-a(3) are met, but the first-instance court correctly found that the use of the vehicle with thus forged identification numbers would affect the safety of the road users in the State [ безбедноста на јавниот сообраќај ], and therefore also the general safety [ интересите на општата безбедност ].” It appears that the latter decision was served on the applicant on 2 June 2011.

The applicant was born in 1956 and lives in Ferdinandovac. He was represented by Mr Ž. Lacković , a lawyer practising in Đurđevac. The Government were represented by their Agent, Ms S. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 June 1995 the applicant was involved in a road traffic accident in which he sustained an injury to his knee. On 1 January 1999 he was granted a disability pension. 7 . In May 1999 he brought a civil action against the insurance company O. before the Đurđevac Municipal Court ( Općinski sud u Đurđevcu ), seeking compensation of damage in relation to the road traffic accident. 8 . The case was assigned to Judge During the first-instance proceedings the applicant was represented by , a lawyer from Đurđevac. 9 . In July 2000 the first-instance court obtained an expert report from H., a surgeon and a permanent court expert, on the nature of the applicant’s injury and the intensity and duration of his physical and mental pain. H. stated, inter alia, that the reason for the applicant’s disability retirement had not been his knee injury sustained in the road traffic accident , but probably the changes to his spine. The applicant objected to H.’s expert report in the part which referred to the reason for his disability retirement. In December 2002 the first-instance court obtained an expert report from F.R., a permanent court expert for road traffic matters. F.R. found, inter alia , that the road traffic accident had occurred due to inappropriate speed of driving of both parties. The applicant did not have objections to F.R.’s findings. In its written submission of 29 March 2006, the defendant company proposed that an expert report be obtained from an occupational medicine specialist. At a hearing held on the same day at which the applicant and his lawyer were present, and the defendant company was not, the first-instance court commissioned an expert report from B., an occupational medicine specialist and a permanent court expert. The task of B. was to assess the relationship between the injury the applicant had sustained in the road traffic accident and his capacity to work. The relevant part of the minutes from the hearing read: “[The court] will commission a medical expert report. [The court] appoints as expert B., ..., occupational medicine specialist, permanent court expert. [The expert] is to establish whether and to what extent [the applicant’s] capacity to work decreased owing to the consequences of the road traffic accident, other injury or illness, and establish the duration of his incapacity to work. The expert is required to submit her written expert report within thirty days ...” On 23 June 2006 B. submitted her expert report to the first-instance court. She examined the applicant’s medical documentation and concluded that: – the reason for the applicant’s incapacity to work (sick leave) from 9 June to 26 August 1995 had been the knee injury sustained in the road traffic accident; – the reason for his sick leave from 28 August to 1 December 1995 had been the treatment of complications from the knee injury caused by an earlier knee illness, as well as the damage to his cervical nerves caused by the changes to his spine; and that – his decreased working capacity had not been caused by the knee injury, but by his spinal illness and by the chronic damage to his cervical nerves. On 11 August 2006 the defendant company proposed that B. be heard in respect of one part of her findings. The applicant agreed with this proposal. 15 . On 25 October 2006 B. submitted an additional expert report in which she explained that the reason for the applicant’s sick leave from 28 August to 1 December 1995 had been the treatment of his knee illness which had developed before the accident, as well as his spinal pain. At the hearing held on 28 December 2006, the applicant challenged B.’s findings. At the hearing held on 5 February 2007, the court heard B. The relevant part of the minutes from the hearing reads: “[The court] will hear expert B. Court expert: Dr B., daughter of ..., born on..., residing in ..., occupational medicine specialist. After being properly warned submits as follows ...” B. then replied to the applicant’s questions as regards her findings in the expert report. In B.’s view, the knee injury aggravated the existing knee illness, and the knee illness prolonged the treatment of the knee injury. The applicant requested additional time in order to specify his claim. 18 . In a submission of 15 February 2007, the applicant relied on B.’s oral evidence given at the hearing of 5 February 2007 to support his claim. 19 . On 2 March 2007 the Đurđevac Municipal Court found, relying on expert report by F.R. (see paragraph 10 above), that the applicant bore 50% of the responsibility for the road traffic accident and thus granted him 50% of the amounts sought in respect of non-pecuniary damage and lost income for the period between 8 June 1995 until his retirement in January 1999 . It assessed his claim for non-pecuniary damage relying on expert report by H. (see paragraph 9 above). It dismissed his claim for a monthly allowance, which the applicant sought as of 1 January 1999, relying on B.’s finding that the reason for the applicant’s disability retirement had not been the knee injury sustained in the road traffic accident. In his appeal the applicant challenged the first-instance court’s conclusion that he bore 50% of the responsibility for the road traffic accident. On 30 September 2008 the Koprivnica County Court upheld the part of the judgment dismissing the applicant’s claim and quashed the part of the judgment concerning awarding the applicant 50% of the amount sought in respect of lost income, and remitted that part of the case to the first-instance court. It found that the first-instance court had failed to explain why it had awarded the applicant lost income for the entire period until his disability retirement. Accordingly, in the remitted case the first-instance court was required to decide on the applicant’s claim in respect of lost income for the period between 8 June 1995 until his retirement in January 1999 in the amount of 54,684 Croatian kunas (HRK), plus statutory interest. The remainder of the first-instance judgment became final. 22 . On 24 November 2008 the applicant lodged an appeal on points of law against the part of the first-instance judgment which became final. On 21 December 2011 the Supreme Court ( Vrhovni sud Republike Hrvatske ) dismissed his appeal on points of law as unfounded. It held, inter alia , that the lower courts had correctly dismissed the applicant’s claim for a monthly allowance, having regard that the expert report had confirmed that the reason for the applicant’s disability retirement had not been the knee injury sustained in the road traffic accident. 23 . Meanwhile, in the remitted case, on 27 October 2009 the first-instance court gave judgment granting the applicant’s claim in respect of lost income for the period between 9 June and 26 August 1995 in the amount of HRK 1,131.52, plus statutory interest, and dismissing the remainder of his claim in the amount of HRK 53,552.In so doing it relied on B.’s findings that the reason for the applicant’s sick leave between 9 June and 26 August 1995 had been the knee injury sustained in the road traffic accident, whereas the reason for his further sick leave had been illnesses unrelated to the accident. 24 . Following the applicant’s appeal, on 23 February 2010 the Koprivnica County Court quashed the part of the first-instance judgment dismissing the applicant’s claim. 25 . On 30 June 2010 the first-instance court dismissed the applicant’s claim, stating that it was not possible to distinguish between the amounts which he had sought on various grounds in respect of lost income within the total amount of the claim in respect of lost income. 26 . Following the applicant’s appeal, the Koprivnica County Court quashed the first-instance judgment and the case was assigned to Judge Z.S. She was required to decide on the applicant’s claim in respect of lost income for the period between 26 August 1995 until his retirement in January 1999 in the amount of HRK 53,552.48, plus statutory interest. On 5 March 2012 the first-instance court dismissed the applicant’s claim as unfounded. It relied on B.’s report that the reason for the applicant’s sick leave after 26 August 1995 had been unrelated to the accident. 28 . On 16 March 2012 the applicant lodged an appeal under section 354(1) of the Civil Procedure Act (see paragraph 44 below) in which he complained that there had been a serious breach of civil procedure on the grounds that the first-instance court had appointed as expert B. who, according to publicly available data, had worked as a medical examiner in the defendant company’s directorate general and was also the president of the management board of its subsidiary, Z.O. The first-instance court had based its judgment on B.’s opinion, whereas pursuant to sections 71 and 254 of the Civil Procedure Act, she ought to have been disqualified from the case (see paragraphs 35-36 below). The applicant stated that he had appointed new lawyers to represent him in the appellate proceedings who had examined the case file and had found out about B.’s connection with the defendant company. He lastly submitted that B.’s findings in his case were evidence of her bias; she had downplayed the impact of his injury on the deterioration of his health. To this appeal the applicant attached a copy of B.’s professional biography. On 4 September 2012 the second-instance court dismissed the applicant’s appeal as unfounded. It found that B.’s professional biography, which was attached to the appeal, indicated that at the time of submitting her expert report she had not been employed by the defendant company, but that she had been a medical examiner in its directorate general in 1995, and that from March 2004 until retirement, the date of which was unknown, she had been president of Z.O.’s management board. It also held that the applicant was precluded from raising the objection regarding the expert’s impartiality in the appeal proceedings. It lastly dismissed the applicant’s objections as to B.’s conclusions, finding that those objections had already been discussed and dismissed during the first-instance proceedings. The relevant part of the second-instance judgment reads: “The complaint concerning the expert was presented by the plaintiff for the first time in his appeal, whereas pursuant to section 352 (2) of the Civil Procedure Act, if during the first-instance proceedings a party does not put forward ... an objection regarding an issue which the first-instance court does not consider of its own motion, the party may not present this objection in the appeal. Pursuant to section 254 of the Civil Procedure Act, an expert may be disqualified for the same reasons as a judge may be disqualified, and a party is obliged to submit a request for disqualification of the expert as soon as he or she learns of the reason for disqualification, and at the latest before the beginning of the hearing of evidence by the expert. If the party learned of the reason for disqualification after the expert report has been obtained and objects to the expert report for this reason, the court shall act as though the request for disqualification was submitted before the expert report was obtained. Therefore, this is a procedural objection regarding an issue which the first-instance court does not consider of its own motion, so the objection cannot be presented in the appeal.” 30 . The applicant lodged a constitutional complaint against the second-instance judgment, arguing that he had complained about B.’s lack of impartiality as soon as he had learned of the reason for which she ought to have been disqualified from the case . The second-instance court had refused to examine his complaint by relying on section 352(2) of the Civil Procedure Act. However, under section 352(1) of that Act, a party to the proceedings could rely in his or her appeal on new facts and evidence if they related to a serious breach of civil procedure as defined by section 354(1) (see paragraphs 41 and 44 below). On 19 December 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic law At the material time the position of court experts in civil proceedings was regulated under sections 251 to 262 of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette nos. 53/1991, 91/1992, 112/1999, 117/2003, 84/2008, 123/2008, 57/2011 and 148/2011). 33 . Under section 251 of the Civil Procedure Act, the commissioning of an expert report was within the competence of the court conducting the proceedings. Before commissioning an expert report, the court was required to hear the parties with regard to the choice of expert (section 251(2)). The court was always allowed to commission a report from another expert (section 251 (4)). 34 . When appointed by the court, experts had an obligation to submit an expert report (section 253(1)). At the expert’s request, the court was to discharge him or her from the obligation to submit an expert report for the same reasons a witness was allowed to refuse to testify or answer a particular question. When there were other justified grounds, the court was able, at the request of the expert or a legal person in which the expert was employed, to release him or her from the obligation to submit an expert report (section 253(2) and (3)). Under section 254(1) of the Civil Procedure Act, an expert could be disqualified for the same reasons as a judge. 36 . A judge was excluded from exercising his or her functions if he or she was employed, permanently or temporarily, by a legal person which was a party to the proceedings (section 71(2)). This was considered to be an absolute ground for a judge to be automatically disqualified from a case. As soon as a judge became aware of an absolute ground for disqualification, he or she was to take no further part in the case in question. The judge was obliged to bring the circumstances which disqualified him or her from sitting to the attention of the president of the court, who then designated another judge (section 72(1)). A judge was excluded from exercising his or her functions where other circumstances were present which cast doubt on his or her impartiality (section 71(7)). A judge was obliged to inform the president of the court of any circumstances which he or she considered might cast doubt on his or her impartiality. The president of the court had then to make a decision regarding possible disqualification, taking account of the circumstances of the case (section 72(2)). The remaining relevant domestic law provisions concerning the disqualification of judges in civil proceedings is set out in the case of Ramljak <COUNTRY> (no. 5856/13, §§ 13-18, 27 June 2017). 37 . Under section 254(2) of the Civil Procedure Act, a party was obliged to submit a request for disqualification of the expert as soon as he or she learned that there was a reason for disqualification and at the latest before the beginning of the hearing of evidence from the expert. In the request for disqualification, the party was obliged to state the circumstances on which the request was based (section 254(3)). If the party learned of the reasons for disqualification after the expert report had already been obtained and objected to the report for those reasons, the court was to act as though the request for disqualification had been submitted before the obtaining of the expert report (section 254(6)). 38 . Deciding on the request for disqualification was within the competence of the civil court (section 254(4)). An appeal was not permitted against a decision accepting the request for disqualification, and a separate appeal was not permitted against a decision refusing the request (section 254(5)). 39 . Experts were invited by written invitation indicating his or her name and occupation and the case in respect of which he or she was being invited as expert. The invitation contained a warning regarding unjustified absences and the right to compensation of costs (section 257). 40 . Before submitting their expert report, experts were invited to carefully examine the matter, accurately state all their observations and give their opinion conscientiously and in accordance with the rules of science and expertise. They were also warned about the legal consequences of perjury (section 258(1)). Experts were then invited to state their name, surname, father’s name, occupation, residence, place of birth, age and their relationship with the parties (section 258(2)). 41 . Under section 352(1) of the Civil Procedure Act, a party was not able to rely on new facts or adduce new evidence in an appeal against a first ‑ instance judgment, unless those facts and evidence related to serious breaches of civil procedure for which it was possible to lodge an appeal. 42 . Under section 352(2) of the Civil Procedure Act, if during the first ‑ instance proceedings the party did not put forward an objection relating to the expiry of the statute of limitations period, an objection with a view to resolving the case by setting off mutual claims , or some other substantive or procedural objection regarding an issue which the first-instance court did not consider of its own motion , the party was not permitted to present this objection in the appeal. Under section 353(1) of the Civil Procedure Act, it was possible to challenge the first-instance judgment on the grounds of a serious breach of civil procedure. 44 . Under section 354(1) of the Civil Procedure Act, a serious breach of civil procedure arose if during the proceedings the court failed to apply, or incorrectly applied, a provision of this Act, which influenced, or could have influenced, the rendering of a lawful and just judgment. In addition to the Civil Procedure Act, at the material time in the case at hand the position of court experts was regulated by two editions of the Court Experts Ordinance ( Pravilnik o stalnim sudskim vještacima , Official Gazette no. 21/1998, and Pravilnik o stalnim sudskim vještacima , Official Gazette no. 88/2008, with further amendments). Both editions of the Court Experts Ordinance provided that court experts were required to give opinions that were objective and to the best of their knowledge true. 46 . The duties of court experts in carrying out their work were also regulated by two editions of the Code of Ethics of Court Experts ( Etički kodeks sudskih vještaka ), adopted by the Croatian Association of Court Experts (Hrvatsko društvo sudskih vještaka ) on 6 April 2002 and 12 February 2011. The latter edition provided that experts were required to avoid conflicts of interest caused by family relations, friendships and financial interests, and abstain from receiving any kind of payment which could affect their objectivity (section 4). They were required to give independent and impartial opinions (section 8). They were obliged to notify the court if there were justified grounds for their removal from the case (section 10). Relevant domestic practice 47 . The Government relied on the Supreme Court’s decision no. Rev ‑ x ‑ 1115/13 of 10 December 2014 delivered in civil proceedings in which the plaintiffs had sought damages from a municipality. In that decision the Supreme Court noted, inter alia , that the first ‑ instance judgment in the case had been based on an expert report submitted by a court expert in respect of whom during the first-instance proceedings the plaintiffs had submitted a request for disqualification for reasons which they had reiterated in their appeal and appeal on points of law, namely, that a company owned by the expert had been in an ongoing business relationship with the defendant. The Supreme Court held that if an expert was in an ongoing business relationship with a party to the proceedings, that could amount to circumstances which cast doubt on his or her impartiality under section 71(7) of the Civil Procedure Act. It noted that the first-instance court had dismissed the request for disqualification of the expert as unfounded and that the second-instance court had avoided considering the matter deeming, inter alia , that the plaintiffs had not submitted their request for disqualification within the time-limit set out in section 254(2) of the Civil Procedure Act (that is, before the expert report had been commissioned). The Supreme Court found that the second-instance court had failed to apply section 254(6) of the Civil Procedure Act, pursuant to which the request could also be submitted after the expert report had already been commissioned, if the party learned of the reasons for disqualification subsequently. The second-instance court had not taken into consideration when the plaintiffs had learned of the reason for the expert’s disqualification. In the second-instance proceedings there had therefore been a serious breach of civil procedure which could have influenced the rendering of a lawful and just judgment. On this ground the Supreme Court quashed the judgment of the second-instance court and remitted the case to it.

Croatia

The applicant's complaint under Article 10 of the Convention relates to his conviction by the Estonian courts of insulting Ms Vilja Laanaru in an interview he had conducted with another journalist, Mr Ülo Russak, which was published in Postimees on 3 April 1996. The interview was entitled “Ülo Russak denies theft” and was prompted by an allegation made by Ms Laanaru that Mr Russak, who had helped her to write her memoirs, had published them without her consent. The interview had the following background. Ms Laanaru is married to the Estonian politician Edgar Savisaar. In 1990, when Mr Savisaar was still married to his first wife, he became Prime Minister of <COUNTRY>. Ms Laanaru, who had already been working for him, became his assistant. She continued to work with him during the following years and in 1995, when Mr Savisaar held the post of Minister of the Interior, she was one of his counsellors. Ms Laanaru had been politically active in the Centre Party ( Keskerakond ) led by Mr Savisaar and was an editor of the party's paper. In or around 1989 Ms Laanaru gave birth to a child by Mr Savisaar. As she was unwilling to place her child in a kindergarten, the child was entrusted to her parents. On 10 October 1995 Mr Savisaar was forced to resign as Minister of the Interior following the discovery of secret tape recordings of his conversations with other Estonian politicians. On the same day Ms Laanaru issued a statement in which she claimed full responsibility for the secret recordings. Ms Laanaru then left her post in the Ministry of the Interior and began writing her memoirs with the help of a journalist, Mr Russak. In her memoirs, as recounted to Mr Russak, Ms Laanaru recalled her experiences in politics and the government. In considering the issue of the secret tape recordings she conceded that the statement she had made on 10 October 1995 was not true. According to Mr Russak, she also reflected on her relationship with Mr Savisaar, a married man, asking herself whether she had broken up his family. She admitted that she had not been as good a mother as she had wished to be and wondered whether she had paid too high a price in sacrificing her child to her career. In the course of the writing, a disagreement arose between her and Mr Russak as to the publication and authorship of the memoirs. On an unspecified date Ms Laanaru brought a civil action before the Tallinn City Court ( Tallinna Linnakohus ) for the protection of her rights as the author of the manuscript. On 29 March 1996 the City Court issued an order prohibiting Mr Russak from publishing the manuscript pending the resolution of the issue of its authorship. Following the court order, Mr Russak decided to publish the material collected in a different form, namely in the form of the information Ms Laanaru had given him during their collaboration. Mr Russak's account of Ms Laanaru's story began appearing in the daily newspaper Eesti Päevaleht on 1 April 1996. Later the same year, Ms Laanaru published her own memoirs. In her book she stated that some of the information published in the newspaper report of Mr Russak's story was incorrect, without specifying in which respect. In the newspaper interview of 3 April 1996, mentioned in paragraph 9 above, the applicant questioned Mr Russak on the issue of the publication of the memoirs and asked him, inter alia , the following question: “By the way, don't you feel that you have made a hero out of the wrong person? A person breaking up another's marriage [ abielulõhkuja ], an unfit and careless mother deserting her child [ rongaema ]. It does not seem to be the best example for young girls.” [ Note by the Registry : The translation of the Estonian words “ abielulõhkuja ” and “ rongaema ” is descriptive since no one-word equivalent exists in English.} Following the above publication, Ms Laanaru instituted private prosecution proceedings against the applicant for allegedly having insulted her by referring to her as “ abielulõhkuja ” and “ rongaema ”. In the proceedings before the City Court, the applicant argued that the expressions used had been intended as a question rather than a statement of his opinion and that a question mark after them had been left out by mistake in the course of the editing. He denied the intent to offend Ms Laanaru and considered the expressions used as neutral. He further claimed that Ms Laanaru's actions had justified his asking the question. By a judgment of 3 April 1997, the City Court convicted the applicant under Article 130 of the Criminal Code of the offence of insulting Ms Laanaru and fined him 220 kroons, the equivalent of ten times the “daily income” rate (see paragraph 31 below). In finding against the applicant, the City Court took note of the expert opinion given by the Estonian Language Institute ( Eesti Keele Instituut ) and of the applicant's unwillingness to settle the case by issuing an apology. It also noted that under the relevant provision of the Criminal Code liability did not depend on whether or not the victim actually possessed the negative qualities ascribed to her by the applicant. According to the expert opinion, the words at issue constituted value judgments which expressed a strongly negative and disapproving attitude towards the phenomena to which they referred. The word “ rongaema ” indicated that a mother had not cared for her child, and the word “ abielulõhkuja ” indicated a person who had harmed or broken up someone else's marriage. Both phenomena had always been condemned in Estonian society and this was also reflected in the language. However, the words were not improper in their linguistic sense. The applicant lodged an appeal with the Tallinn Court of Appeal ( Tallinna Ringkonnakohus ) in which he argued, inter alia , that the first-instance court had failed to take into account the context of the whole article in which the two words appeared. He also disputed the qualification of his action as a crime on the grounds that he had lacked criminal intent and that the form used was not improper. He further stressed his right as a journalist freely to disseminate ideas, opinions and other information guaranteed by the Estonian Constitution and argued that the judgment of the first-instance court constituted a violation of his freedom of speech. By a judgment of 13 May 1997, the Court of Appeal dismissed the applicant's appeal and upheld the City Court's judgment. The Court of Appeal noted that in private prosecution cases its examination was limited to the claims put forward by the offended party. The text of the whole interview, however, had been added to the case file. While noting that the impugned expressions were not indecent, the Court of Appeal considered them to be grossly degrading to human dignity and their use by the applicant in the circumstances of the case abusive. Had he expressed his negative opinion about Ms Laanaru by stating that she did not raise her child and that she had destroyed Mr Savisaar's marriage, it would not have constituted an insult. The Court of Appeal pointed out that the Constitution and the Criminal Code expressly provided for the possibility of restricting freedom of speech if it infringed the reputation and rights of others. Despite the special interest of the press in public figures, the latter also had the right to have their honour and dignity protected. The applicant lodged an appeal on points of law with the Supreme Court ( Riigikohus ) arguing, inter alia , that the two expressions did not have any synonyms in the Estonian language and he had therefore had no possibility of using other words. The use of a longer sentence omitting the words had been precluded by objective circumstances peculiar to journalism. By a judgment of 26 August 1997, the Supreme Court's Criminal Division rejected the applicant's appeal and upheld the Court of Appeal's judgment. Its judgment included the following reasons: “The principle of freedom of speech, including the principle of freedom of the press provided for in Article 45 § 1 of the Constitution of the Republic of <COUNTRY> ('the Constitution') and Article 10 § 1 of the European Convention on Human Rights ('the ECHR'), is an indispensable guarantee for the functioning of a democratic society and therefore one of the most essential social values. ... According to Article 11 of the Constitution the restriction of any rights or freedoms may take place only pursuant to the Constitution; such restrictions must moreover be necessary in a democratic society and must not distort the nature of the restricted rights and freedoms. Freedom of speech, including freedom of the press, as a fundamental right may be restricted pursuant to Article 45 of the Constitution for the protection of public order, morals, the rights and freedoms of other persons, health, honour and good name. Under Article 10 § 2 of the ECHR, freedom of speech may be restricted by law also for the protection of morals and the reputation or rights of others. In <COUNTRY> a person has in principle the right to protect his or her honour as one aspect of human dignity by bringing either civil or criminal proceedings. According to section 23(1) of the Law on General Principles of the Civil Code, a person has the right to apply for a court order to put a stop to the besmirching of his or her honour, the right to demand rebuttal of the impugned material provided that the person defaming him or her fails to prove the truthfulness of the material and also the right to demand compensation for pecuniary or non-pecuniary damage caused by the attack on his or her honour. Thus a person can seek protection through a civil procedure only if the person feels that his or her honour has been sullied with a statement of fact, as only a fact can be proved to be true. However, if a person feels that his or her honour has been besmirched by a value judgment, it is impossible to prove that allegation in a legal sense. In its Lingens <COUNTRY> (1986) and Thorgeir Thorgeirson <COUNTRY> (1992) judgments, the European Court of Human Rights has also taken the view that a clear distinction must be made between facts and value judgments. Since the truth of a value judgment cannot be proved, the European Court of Human Rights has found that if a person offended by a journalist through a value judgment goes to a national court in order to prove the value judgment, this constitutes a violation of the freedom of speech provided for in Article 10 of the ECHR. Therefore, a person in <COUNTRY> has in fact no possibility of protecting his or her honour through civil-law remedies if he or she has been defamed by means of a value judgment. It follows that in [such] cases ... a person can only resort to criminal-law remedies for protecting his or her honour – by initiating a private prosecution under Article 130 of the Criminal Code. In the present case, the victim has availed herself of this sole opportunity. The Criminal Division of the Supreme Court considers the judgments delivered by the Tallinn City Court and the Tallinn Court of Appeal on 3 April 1997 and 13 May 1997 respectively to be lawful and not subject to annulment. In response to the arguments put forward in the appeal, the Criminal Division of the Supreme Court considers it necessary to note the following. The appellant's statement that the words ' rongaema' and ' abielulõhkuja ' could not be offensive to Laanaru since the sentence in the article which contained these words did not include the name of Laanaru, meaning that the words have not been used against anyone personally, is groundless and fabricated. Both the City Court and the Court of Appeal have correctly concluded that the expressions ' rongaema ' and ' abielulõhkuja ' have been used by [the applicant] to characterise the victim Laanaru (Savisaar). The Criminal Division of the Supreme Court wishes to add that in the formulation of his next argument – that it is legitimate to use the impugned expressions towards public figures – the appellant has considered Laanaru to be a public figure, thereby in fact invalidating his first argument. Although Article 12 of the Constitution stipulates the equality of everyone before the law, the Criminal Division of the Supreme Court does not consider it necessary to question the special interest of the press towards public figures – a principle recognised in the practice of the European Court of Human Rights. However, the Criminal Division of the Supreme Court wishes to stress that in <COUNTRY> there is no legal definition of a public figure and in the practice of the European Court of Human Rights no one has been considered a public figure for the reason that he or she is a spouse, cohabitant, child or other person close to a public figure. It must be emphasised nevertheless that it cannot be concluded from the practice of the European Court of Human Rights that the special interest of the press towards public figures means that public figures cannot be offended. On the contrary, according to the criminal laws of several countries, such as <COUNTRY>, the act of offending a public figure qualifies as a crime. The public has the right to expect the press to describe the life of public figures more thoroughly than the life of ordinary people, but the public has no right to expect the honour of public figures to be degraded, especially in the press and in an improper manner. The Criminal Division does not agree with the standpoint put forward in the appeal that, since the words ' rongaema ' and ' abielulõhkuja ' are not vulgar or indecent, their use in referring to a person cannot be considered as degrading that person's honour and dignity in an improper manner, which is an obligatory element of the definition of the offence under Article 130 of the Criminal Code. Improper form as a legal category within the meaning of Article 130 of the Criminal Code does not only include the use of vulgar or indecent words, but also the use of negative and defamatory figurative expressions. Besides, improper form may also be non-verbal, for example a caricature. Both the City Court and the Court of Appeal have correctly taken the view, on the basis of an expert opinion, that by using the words ' rongaema ' and ' abielulõhkuja ' in reference to Laanaru in the newspaper article [the applicant] has treated the victim in public in a defamatory and thus improper manner. The statement of [the applicant's] defence lawyer ... that the Court of Appeal had no right to prescribe which style a journalist was to use when writing a newspaper article is without foundation. Such a statement can be accepted in so far as the journalistic style does not offend or degrade human dignity. Concerning the protection of the honour and dignity of a person, the court was correct in pointing out that the idea expressed in an improper form could also be expressed in a proper form in Estonian. The argument of the appellant that the offensive expressions ' rongaema ' and ' abielulõhkuja ' were used due to the absence in the Estonian language of synonymous terms and that the use of a longer sentence avoiding these words was precluded by objective circumstances peculiar to journalism, is also ill-founded. There are probably no synonyms for several vulgar and indecent expressions in Estonian. This, however, does not justify their use. Any objective circumstances inherent in the functioning of the press – such as consideration of newspaper space and information density, according to the appellant – being values whose scope is limited to a particular sphere, cannot be compared to such values as human dignity. Under Article 65 § 4 of the Code of Criminal Procedure in Appeal and Cassation Proceedings, the Supreme Court lacks competence to establish factual circumstances. Accordingly, the Supreme Court cannot reconsider the decision which the City Court and the Court of Appeal took on the basis of an expert opinion that the use of these offensive expressions constituted a value judgment by the journalist and not a question. However, the Criminal Division of the Supreme Court finds it necessary to point out that the prevailing opinion in legal writing is that insult is in principle possible also in the form of a question. It is also important to stress that if the newspaper Postimees has violated the rights of the author [the applicant] and distorted his intent by an incompetent technical editing [by leaving out the question mark at the end of the two expressions] (letter of the chief editor of Postimees of 16 May 1996 in the file), it would have been possible for [the applicant] or the newspaper to remedy the damage in an out-of-court settlement by simply publishing an apology as the victim had expressed readiness to reach such a settlement. However, neither [the applicant] nor the newspaper Postimees was willing to acknowledge in public that they had made a mistake and this constituted further evidence of direct intent to insult.”

Germany, Austria, Iceland, Estonia

6

She holds a doctoral degree in the field of criminal law. On 14 January 2010 the applicant lodged a request with the Ministry of Justice (“the Ministry”) in order to be recognised as having the same status as a person who had passed the BAR examination ( изедначување со правата на лицата кои положиле правосуден испит ). As she did not obtain a decision, she lodged two further requests, on 24 November 2011 and 6 February 2012. On 11 April 2012 the Ministry rejected her request, holding that she did not meet the relevant criteria to obtain such recognition. In particular, the Ministry found that although she was a professor of law at a university, she did not hold a bachelor’s degree in law ( дипломиран правник на правен факултет ). The Ministry further found that the bachelor’s degree which she had obtained had been awarded by the Faculty of Security and Social Defence ( Факултет за безбедност и општествена самозаштита ), and not by a faculty of law, as required. On 10 May 2012 the applicant brought an action with the Administrative Court ( Управен суд ), challenging the refusal. She argued that as a university professor at a faculty of law she met the relevant criteria. On 30 May 2013 the Administrative Court dismissed the applicant’s action. It held that regardless of her current status, she did not meet the criteria to obtain the desired recognition under domestic law. In particular, it established that the applicant did not hold a bachelor’s degree in law, which was a condition for the recognition she sought. On 23 September 2013 the applicant lodged an appeal with the Higher Administrative Court ( Виш управен суд ). She argued that she met the relevant criteria and that the lower court had failed to properly interpret the procedural and substantive law in the case. On an unspecified date, the Ministry submitted observations to the Higher Administrative Court concerning the applicant’s case. The Ministry stated in the observations that the right to obtain recognition as having the same status as a person who had passed the BAR examination was dependent on having a bachelor’s degree issued by a faculty of law. The applicant did not possess such a degree and had therefore failed to meet the criteria under domestic law. Those observations were not communicated to the applicant. On 30 January 2014 the Higher Administrative Court dismissed the applicant’s appeal, reiterating in full the reasons provided by the Administrative Court. It restated that the recognition sought by the applicant was dependent on her having a bachelor’s degree issued by a faculty of law, a condition which she had failed to meet. The decision was served on the applicant on 19 May 2014.